Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, December 10, 2021

Norton on Manipulation and the First Amendment

Helen L. Norton, University of Colorado Law School, is publishing Manipulation and the First Amendment in the William & Mary Bill of Rights Journal. Here is the abstract.

This Essay draws from ethicists’ insights to explain how manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately tailored interventions. More specifically, the key features of manipulation—as defined by ethicists Daniel Susser, Beate Roessler, and Helen Nissenbaum—are a speaker’s hidden efforts to shape listeners’ decision-making that target and exploit those listeners’ vulnerabilities in ways that the targets are not consciously aware of, and in ways that those targets could not easily become aware of if they were to try This Essay then explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. In commercial settings, more specifically, it proposes that the Court should refine and extend commercial speech doctrine to add “manipulative” commercial speech to the commercial speech it currently treats as entirely unprotected by the First Amendment because it frustrates listeners’ interests. This move tracks the original theoretical justifications of the commercial speech doctrine as steeped in protecting listeners’ First Amendment interests. When we recall that false and misleading commercial speech, as well as commercial speech related to illegal activity, loses its First Amendment protection precisely because it frustrates listeners’ First Amendment interests, we can see that the same can be true of manipulative commercial speech: it frustrates listeners’ interests by seeking to covertly influence those listeners’ choices without their conscious awareness and by targeting and exploiting their vulnerabilities. Filling this doctrinal lacuna would also help fill enforcement lacunae within current law. Even though existing consumer protection statutes frequently prohibit “unfair” as well as “deceptive” trade practices, to date enforcement efforts have focused almost entirely on allegedly deceptive practices—largely because of the conceptual difficulty in defining and describing illegally “unfair” practices. Here too ethicists give us the conceptual tools to help us understand why manipulation can be regarded as “unfair” to listeners even when it is hard to characterize as deceptive in traditional terms. This then requires that we have a workable principle for identifying online commercial speech that is manipulative (and thus unprotected by the First Amendment). To this end, this Essay consider two possibilities: a) focusing on evidence of interfaces’ manipulative success in changing consumers’ choices; and b) targeting interfaces that display key manipulative features that increase the risk of manipulation. Finally, this Essay briefly examines how online manipulation in the political setting poses harms of its own that may also justify appropriately tailored regulatory intervention (even while recognizing that the First Amendment barriers to such regulation are significantly greater in this context than in the commercial setting) and closes by highlighting some possible interventions that deserve further consideration.

Download the essay from SSRN at the link.

December 10, 2021 | Permalink

Thursday, December 9, 2021

Call For Applications: Yale Information Society Project/Media Freedom & Information Access Clinic Fellowship Opening

 

Media Freedom & Information Access Clinic (MFIA) Clinical Fellowship Opening

CLINICAL FELLOWSHIP OPENING

July 1, 2022

The Yale Information Society Project is now accepting applications for a fellowship position with the Media Freedom & Information Access Clinic (MFIA), beginning in July 2022. MFIA is a law student clinic that supports robust investigative journalism, promotes the public’s right of access to information, and protects freedom of expression.

The ideal candidate will have at least two years of relevant litigation experience, including some demonstrated interest in the fields of media law, First Amendment, FOIA, Internet law, administrative law, or intellectual property law.

 

About the MFIA Clinic

Founded in 2009, MFIA was the first law school clinic dedicated to defending the rights of newsgatherers and promoting government transparency. It evolved out of the recognition that new technologies were forcing radical changes on the media market and leaving established news organizations in a financial condition that precluded them from either pursuing the affirmative litigation essential to effective newsgathering or vigorously fighting efforts by governments and others to unmask confidential sources and prevent whistleblowing.

MFIA helps to fill these gaps by providing pro bono legal services to journalists, activists and academics who lack access to the legal services needed to exercise their First Amendment rights and to hold governments accountable. The Clinic pursues affirmative litigation to enforce newsgathering rights, compel access to information and prevent the spread of disinformation, advises on prepublication issues, and defends against lawsuits seeking to punish newsgatherers and publications. MFIA also develops and implements litigation strategies and policy initiatives for achieving structural change in the rules governing government transparency and accountability.

MFIA is a program of the Abrams Institute for Freedom of Expression at Yale Law School and is administered by the Yale Information Society Project (ISP). Both the ISP and the Abrams Institute are directed by Knight Professor of Constitutional Law and the First Amendment Jack Balkin. The Clinic is directed by Abrams Clinical Lecturer and Senior Research Scholar David Schulz, an experienced media litigator who also serves as Senior Counsel to the Media Practice Group at Ballard Spahr, LLP.

Over the past decade, the MFIA Clinic has achieved successes for a wide range of clients, from individual journalists at start-up websites, to such major news organizations as The New York TimesThe Guardian, the Associated Press, and ProPublica. It has also successfully represented a range of investigative advocacy clients, from individual civil rights activists to international rights organizations such as Human Rights Watch and Privacy International. The Clinic has a diverse docket organized loosely into four broad areas:

Newsgathering and publication: Defending those exercising the rights afforded by the Constitution’s press clause in a world where online publishing is widespread, and litigating issues that shape the ability of journalists to gather news, including prior restraints, privacy, and the use of new technologies. Current cases include challenges to state drone regulations that impede newsgathering, and to the abusive use of governmental power to punish disfavored news reporting.

Government accountability: Securing information needed for democratic oversight of government operations at both the state and federal level. The Clinic’s current focus includes cases seeking to hold law enforcement and intelligence agencies accountable, including for their actions or inactions leading up to January 6, and to support local investigative journalism in Connecticut, New York and New England.

Constitutional access: Enforcing and expanding the constitutional right of access to governmental proceedings and related records. Current matters include a challenge to the closure of all domestic abuse proceedings in Puerto Rico and motions seeking to define the scope of public access to classified information placed into the records of court proceedings.

Open data: Ensuring access to scientific information and data vital to scientific advancement and fact-based regulatory decisions. Current cases seek to achieve the level of access to medical data needed to ensure the integrity of the new drug approval process and to facilitate academic research.

MFIA also runs the “DocProject,” a dedicated team of Yale law students working under the supervision of experienced media lawyers to advise documentarians and independent filmmakers during the production phase of their projects. The project provides advice on libel, privacy, and other newsgathering issues.

The MFIA website provides more detail about the Clinic’s current caseload.

About the Fellowship

MFIA seeks candidates for this position with at least two years of relevant experience who are interested in pursuing a career in litigation or public advocacy on issues surrounding digital-age free expression and government transparency. Previous Fellows have gone on to work in-house at media companies and law firm media practices, at non-governmental organizations, or as law school clinical professors.

The Fellow will work closely with the Clinic’s team of litigators, which currently includes Clinic Director David Schulz, another full-time Fellow, and two visiting clinical lecturer, Sandra Baron and Jennifer Borg. The fellowship provides the opportunity to gain hands-on experience litigating cutting edge issues, to supervise and teach law students, to work on legal scholarship, and to participate in the intellectual life of the Yale ISP. The duties of the Fellow include:

  • assuming overall responsibility for selected cases on the MFIA docket and supervising Yale Law School students in the Clinic;
  • assisting the Clinic’s intake process and shaping its docket;
  • teaching several substantive and skill-based classes to students as part of the Clinic’s weekly seminar;
  • supervising summer law student interns at the Clinic and covering Clinic cases during semester breaks;
  • coordinating the Access and Accountability Conference hosted each fall by MFIA and the Abrams Institute;
  • engaging in the scholarly activities of the ISP, which include regular academic lunches, workshops, conferences, and talks.

Fellows must live in the New Haven area during their fellowship. The fellowship starts on July 1 and lasts for one year, renewable for a second year. The salary for the fellowship will be $75,000. Fellows also receive Yale health benefits and access to university facilities, as well as a travel budget for academic and clinic conferences.

Application Instructions

Applications will be reviewed on a rolling basis and must be submitted no later than January 17, 2022. Applications should include:

  • A statement of no more than three (3) pages describing the applicant’s interest in the fellowship, relevant practice experience, and career goals;
  • A copy of the applicant’s resume;
  • A law school transcript; and
  • At least one sample of recent legal writing, preferably a brief or memorandum.

***Please indicate clearly in your application materials that you are applying for the MFIA Fellowship***

Application materials should be sent (in electronic form) to Heather Branch at heather.branch@yale.edu.

For further information, please feel free to contact MFIA Clinic Director David Schulz at david.schulz@yale.edu.

Yale University considers applicants for employment without regard to, and does not discriminate on the basis of, an individual’s sex, race, color, religion, age, disability, status as a veteran, or national or ethnic origin; nor does Yale discriminate on the basis of sexual orientation or gender identity or expression. Title IX of the Education Amendments of 1972 protects people from sex discrimination in educational programs and activities at institutions that receive federal financial assistance. Questions regarding Title IX may be referred to the University’s Title IX Coordinator, at TitleIX@yale.edu, or to the U.S. Department of Education, Office for Civil Rights, 8th Floor, Five Post Office Square, Boston MA 02109-3921. Telephone: 617.289.0111, Fax: 617.289.0150, TDD: 800.877.8339, or email: ocr.boston@ed.gov.

December 9, 2021 | Permalink

Wednesday, December 8, 2021

Abel on Cop-"Like": The First Amendment, Criminal Procedure, and Police Social Media Speech @UCHastingsLaw @StanLRev

Jonathan Abel, University of California, Hastings, College of Law, is publishing Cop-'Like': The First Amendment, Criminal Procedure, and Police Social Media Speech in the Stanford Law Review. Here is the abstract.

What happens when a law enforcement officer makes an offensive comment on social media? Increasingly, police departments, prosecutors, the courts, and the public have been confronted with the legal and normative questions resulting from officers’ racist, sexist, and violent social media comments. On the one side are calls for severe discipline and even termination. On the other side are demands that officers, like others, be permitted to express their views without fear of government retaliation. To this point, the regulation of police social media speech has largely been conceived of in First Amendment terms. But criminal procedure doctrine has also begun to be employed in the regulation of police social media speech. Because an officer’s comments may affect her ability to testify, criminal procedure and, specifically, Brady v. Maryland, have great potential to govern this difficult area of conduct. By using both First Amendment and criminal procedure doctrines to analyze the problem of police social media speech, the Article is able to shed new light on the problem and on possible solutions. Among its core contributions, this Article argues: (1) There is a la-tent and irreconcilable tension between the First Amendment and criminal procedure paradigms for regulating officers’ speech. (2) Pseudonymous, private, and otherwise-“hidden” speech presents a significant problem that is both ignored and exacerbated by the First Amendment paradigm. It can be addressed only by a criminal procedure approach to regulating police social media speech. (3) Police departments and prosecutors’ offices must start to proactively monitor their officers’ social media speech, as the failure to do so undermines officers’ free speech rights, defendants’ criminal procedure rights, and the public’s faith in the legitimacy of the police force.

Download the article from SSRN at the link.

December 8, 2021 | Permalink

Wednesday, December 1, 2021

Langvardt on Whether the First Amendment Can Scale @kylelangvardt @UNLCollegeofLaw @JournalSpeech

Kyle Langvardt, University of Nebraska (Lincoln), College of Law, has published Can the First Amendment Scale? at 1 J. Free Speech Law 273 (2021). Here is the abstract.

American judges today preside over a laissez-faire regime of “editorial discretion” for private media entities. That approach promotes freedom of speech when applied to entities such as newspapers that handle content at a relatively small scale. But applied to entities such as Facebook that han-dle millions of items of third-party content a day, the laissez-faire ap-proach threatens free speech by concentrating unchecked censorial power in the hands of a few companies. That outcome is probably avoidable, but only at the price of difficult transformations in First Amendment law that seem to carry their own significant risks. These changes will include a weakening in the editorial concept and a diminished role for the judiciary in defining the public law of free speech.

Download the article from SSRN at the link.

December 1, 2021 | Permalink

Friday, November 19, 2021

Gligorijevic on Taming the "Chilling Effect" of Defamation Law: English Experience and Implications for Australia @FederalReview

Jelena Gligorijevic, ANU College of Law, is publishing Taming the ‘Chilling Effect’ of Defamation Law: English Experience and Implications for Australia in volume 50 of the Federal Law Review (2022). Here is the abstract.

The ‘chilling effect’ of defamation law has driven legislative action narrowing this tort’s scope and operation. As substantial reforms come into effect across Australia, this article provides a detailed analysis of how defamation law in the United Kingdom has developed since similarly narrowing reforms took effect there almost a decade ago, and the implications this will have for Australia. Two important aspects of reform in both jurisdictions are the serious harm threshold, and the public interest defence. Both are targeted at narrowing the tort, and taming its ‘chilling effect’. Although both of these two changes have definitively narrowed the tort in the United Kingdom, neither of them has revolutionised this tort or abolished its core purpose to protect reputation against false imputations. Given the consistency in legislative purpose and framing of the new provisions as between the two jurisdictions, Australian courts should, consistently with their English counterparts, exercise caution when interpreting the new threshold and the new defence, to ensure they do not tread too far from the deeper principles underpinning the tort, even in its narrower, tamer form.

Download the article from SSRN at the link.

November 19, 2021 | Permalink

Carr on Free Speech and Anti-Democratic Violence @TheNewSchool

Andy Carr, The New School, New School for Social Research, Department of Politics, is publishing Free Speech and Anti-Democratic Violence at 18 Stan. J. C.R. & C.L. __ (Forthcoming). Here is the abstract.

The resurgence of far-right extremist groups—like “sovereign” militias, white supremacists, and avowedly fascist gangs—has exposed the First Amendment’s vulnerabilities to the “leaderless resistance” model of extremist organizing. This model, first popularized by white supremacist Louis Beam, specifically aims to insulate extremist leaders from liability when their followers engage in violence. It does so through fragmented structures and coded messages: Leaders use indirect references in speaking to disparate followers, without specificity (of targets) or immediacy (of corresponding violence), as required, e.g., for “incitement” under Brandenburg v. Ohio. This Article makes two contributions. First, it articulates this “gap” with precision, drawing upon recent, mostly overlooked cases while explaining the limits of extant free speech exceptions. Second, it reformulates Professor Clay Calvert’s recent proposal for opening extremist group leaders to vicarious liability, including a discussion of how to avoid overly broad adjustments that may impinge on other kinds of speech.

Download the article from SSRN at the link.

November 19, 2021 | Permalink

Tuesday, November 16, 2021

Lai on The Natural Right To Parody: Assessing the (Potential) Parody/Satire Dichotomies in American and Canadian Copyright Laws @BCLAW

Amy Lai, Boston College Law School; University of Cambridge; Free University Berlin, has published an updated version of The Natural Right to Parody: Assessing the (Potential) Parody/Satire Dichotomies in American and Canadian Copyright Laws. Here is the abstract.

This paper argues that the parody provisions in American and Canadian laws need to be reformed to stimulate creativity and enable free expressions.

Originally in Windsor Yearbook of Access to Justice 2018; Updated Version Republished on SSRN, January 2021)

November 16, 2021 | Permalink

Friday, November 12, 2021

Goldberg on First Amendment Contradictions and Pathologies in Discourse @GoldbergPrime @arizlrev

Erica Goldberg, University of Dayton School of Law, is publishing First Amendment Contradictions and Pathologies in Discourse in the Arizona Law Review. Here is the abstract.

A robust, principled application of the First Amendment produces contradictions that undermine the very justifications for free speech protections. Strong free speech protections are justified by the idea that rational, informed deliberation leads to peaceful decision-making, yet our marketplace of ideas is crowded with lies, reductive narratives, emotional appeals, and speech that leads to violence. Our current First Amendment model creates pathologies in discourse that are exacerbated in our modern age of easy communication. The reason for these pathologies lies in the relationship between reason and emotion, both in human psychology and in First Amendment doctrine. But the solution to these speech pathologies is not to dramatically alter First Amendment doctrine, which, despite claims that the First Amendment is ill-equipped to deal with modern problems, is needed now more than ever.

Download the article from SSRN at the link.

November 12, 2021 | Permalink

Thursday, November 4, 2021

Rauch on Customized Speech and the First Amendment

Daniel Rauch, Yale University Law School, is publishing Customized Speech and the First Amendment in the Harvard Journal of Law & Technology (2022). Here is the abstract.

Customized Speech — speech targeted or tailored based on knowledge of one’s audience — is pervasive. It permeates our relationships, our culture, and, especially, our politics. Until recently, customization drew relatively little attention. Cambridge Analytica changed that. Since 2016, a consensus has decried Speech Customization as causing political manipulation, disunity, and destabilization. On this account, machine learning, social networks and Big Data make political Customized Speech a threat we constitutionally can, and normatively should, curtail. That view is mistaken. In this Article, I offer the first systematic analysis of Customized Speech and the First Amendment. I reach two provocative results: Doctrinally, the First Amendment robustly protects Speech Customization. And normatively, even amidst Big Data, this protection can help society and democracy. Doctrinally, the use of audience information to customize speech is, itself, core protected speech. Further, audience-information collection, while less protected, may still only be regulated by carefully drawn, content-neutral, generally applicable laws. And unless and until the state affirmatively enacts such laws (as, overwhelmingly, it has not), it may not curtail speakers’ otherwise-lawful use of such information in political Speech Customization. What does this mean for democratic government? Today, Customized Speech raises fears about democratic discourse, hyper-partisan factions, and citizen autonomy. But these are less daunting than the consensus suggests, and are offset by key benefits: modern Customized Speech activates the apathetic, empowers the marginalized, and checks government overreach. Accordingly, many current proposals to restrict such Customized Speech — from disclosure requirements to outright bans — are neither constitutionally viable nor normatively required.

Download the article from SSRN at the link.

November 4, 2021 | Permalink

Wednesday, November 3, 2021

Call For Applications: Yale Information Society Project MFIA Clinical Fellowship Opening @yaleisp

From the Yale Information Society Project:

 

 

The Yale Information Society Project is now accepting applications for a fellowship position with the Media Freedom & Information Access Clinic (MFIA), beginning in July 2022. MFIA is a law student clinic that supports robust investigative journalism, promotes the public’s right of access to information, and protects freedom of expression.

The ideal candidate will have at least two years of relevant litigation experience, including some demonstrated interest in the fields of media law, First Amendment, FOIA, Internet law, administrative law, or intellectual property law.

MFIA seeks candidates for this position with at least two years of relevant experience who are interested in pursuing a career in litigation or public advocacy on issues surrounding digital-age free expression and government transparency. Previous Fellows have gone on to work in-house at media companies and law firm media practices, at non-governmental organizations, or as law school clinical professors.

 

More here.

 

November 3, 2021 | Permalink

Tuesday, November 2, 2021

Sprague on Normalizing De-Platforming: The Right Not to Tolerate the Intolerant

Robert Sprague, University of Wyoming College of Business, has published Normalizing De-Platforming: The Right Not to Tolerate the Intolerant. Here is the abstract.

Following the attack on the U.S. Capital in January 2021 tens of thousands of accounts, including the Facebook and Twitter accounts of then-President Donald Trump, were suspended or deleted. Section 230 of the Communications Decency Act grants online digital platforms immunity from liability for not only allowing third parties to post information online but also for decisions to remove that content. Since the “Great De-Platforming” of 2021, the viability of § 230 immunity has been called into question. This paper explores the legal boundaries in which online digital platforms operate. It argues that robust online speech requires that platforms must continue to enjoy immunity for their decisions on which content and users must be removed in order to ensure that intolerant speech does not squelch all other speech.

Download the article from SSRN at the link.

November 2, 2021 | Permalink

Goldman on Five Things To Know About Section 230 @ericgoldman @santaclaralaw @CIGIonline

Eric Goldman, Santa Clara School of Law, is publishing Five Things to Know About Section 230 at 2021 Centre for International Governance Innovation (CIGI). Here is the abstract.

This essay, written primarily for Canadian readers, explains five things that Canadians need to know about Section 230, the U.S. law that's become the legal foundation of the modern Internet.

Download the essay from SSRN at the link.

November 2, 2021 | Permalink

Monday, November 1, 2021

Carroll on Obstruction of Journalism @erinccarroll13 @denverlawreview @GeorgetownLaw

Erin Carroll, Georgetown University Law Center, is publishing Obstruction of Journalism in the Denver Law Review (2021). Here is the abstract.

Identifying oneself as press used to be a near-grant of immunity. It meant safer passage through all manner of dangerous terrain. But today, being recognizable as a journalist may be more likely to make one a target. Physical attacks against journalists in the United States increased nearly 1,300 percent in 2020. The rate of online violence against journalists is also soaring. This violence is aimed almost entirely at women, people of color, non-Christians, and non-straight journalists. It silences voices already relegated to the edges. Rather than letting our national conversation branch, the violence attempts to shear it to a white, male, Christian, and straight trunk. At its core, democracy requires that new voices can be heard so that stock stories—and the hierarchies they support—do not become entrenched. Journalists tell us these new stories about ourselves and our communities—stories that bring us into conversation with one another and help us to self-govern. Given this, violence against journalists is an assault on freedom of expression and democracy itself. And it is continuing with impunity. To address the systemic harm caused by the violence, this Article proposes a federal “obstruction of journalism” statute modeled on the obstruction of justice ones. Obstruction of justice is aimed at preserving the effective functioning of our justice system by criminalizing threats against that system. Likewise, obstruction of journalism would criminalize physical violence and particularly severe threats against reporters with the aim of protecting journalism, another system integral to a functioning democracy.

Download the article from SSRN at the link.

November 1, 2021 | Permalink

Wednesday, October 27, 2021

Volokh on Treating Social Media Platforms Like Common Carriers @unsealiecourt @UCLA_Law @JournalSpeech

Eugene Volokh, University of California, Los Angeles, School of Law, has published Treating Social Media Platforms Like Common Carriers? at 1 Journal of Free Speech Law 377 (2021). Here is the abstract.

The rise of massively influential social media platforms—and their growing willingness to exclude certain material that can be central to political debates—raises, more powerfully than ever, the concerns about economic power being leveraged into political power. There is a plausible (though far from open-and-shut) argument that these concerns can justify requiring the platforms not to discriminate based on viewpoint in choosing what material they host, much as telephone companies and package delivery services are barred from such viewpoint discrimination. PruneYard Shopping Center v. Robins, Turner Broadcasting System v. FCC, and Rumsfeld v. FAIR suggest such common-carrier-like mandates would be constitutional. On the other hand, platforms do have the First Amendment right to choose what to affirmatively and selectively recommend to their users.

Download the article from SSRN at the link.

October 27, 2021 | Permalink

Wright on Sharpening the Focus of Free Speech Law: The Crucial Role of Government Intent @IUMcKinney

R. George Wright, Indiana University School of Law, has published Sharpening the Focus of Free Speech Law: The Crucial Role of Government Intent. Here is the abstract.

Contemporary free speech law is typically misfocused. This misfocus serves neither the purposes underlying the institution of free speech nor any broader social rights and interests in conflict with freedom of speech. As a general matter, the adjudication of free speech claims should properly focus, centrally, on the intent of the regulating government. More specifically, courts should focus crucially on whether the government has, in enacting or enforcing its speech regulation, intended to suppress or disadvantage a presumed or actual idea or its expression. This sharpened focus would allow the courts to responsibly address a surprisingly broad range of free speech cases, with a substantially diminished need for attention to a number of artificial, if not unnecessary, judicial doctrines that have gradually been incorporated into the free speech case law.

Download the article from SSRN at the link.

October 27, 2021 | Permalink

Tuesday, October 26, 2021

Call For Applications: Legal Fellow--First Amendment Coalition

The First Amendment Coalition (FAC) seeks applicants to join our growing team for a full-time legal fellowship for one year, with the possibility of renewal for a second year.  We seek a highly motivated lawyer with excellent credentials and a demonstrated interest in the relevant areas of law.

The Legal Fellow will work with FAC’s Executive Director and Litigation Director to expand FAC’s strategic litigation program and our ability to provide expert legal assistance to working journalists and others, with a particular focus on those in traditionally underserved communities. FAC’s legal work is focused on enhancing public access to federal, state and local government records and proceedings and protecting the First Amendment rights of free speech and press. FAC also works to provide legal assistance to journalists served with subpoenas for their confidential sources and notes.

The Legal Fellow’s duties will include:
(1) researching, drafting, submitting, and following up on requests for government records under the California Public Records Act and the federal Freedom of Information Act;
(2) identifying, formulating and helping to bring cases in state and federal courts seeking access to government meetings and records, as well as to court proceedings and records;
(3) organizing, researching and drafting amicus briefs, and screening amicus briefs that FAC is asked to join;
(4) helping locate and then assisting pro bono counsel to represent subpoenaed journalists;
(6) other tasks to support FAC’s legal work.

Qualifications:  

The Legal Fellow must:

(1) have a J.D. from a U.S. accredited law school and have excellent academic credentials.  
(2) show a demonstrated interest in First Amendment law and/or FOIA and other access laws. A background in journalism is a plus.
(3) be a self-starter and detail-oriented, with the ability to work collegially and collaboratively on a small staff.
(4) have strong research, analytical and legal writing skills.

It is preferred that the Legal Fellow have one or more years of legal experience working in the relevant legal areas, in a judicial clerkship, law firm, or non-profit organization. California bar membership is required, though FAC will consider recent graduates who have applied for membership to the California bar or attorneys licensed elsewhere who are willing to apply for California bar membership.


We will consider candidates who are able to work remotely only but will give preference to candidates who are, or can be, based in the San Francisco Bay Area, and are able to work in FAC’s offices in San Rafael depending on the state of public health in 2022.

FAC is committed to a diverse and inclusive staff, one that reflects the state and country we serve.  Freedom of information, expression, and of the press are universal ideals but diversity of life experiences can make a big difference in how FAC identifies and litigates legal issues, serves our varied constituencies, and arrives at policy positions on the rights and ideals we care about. To that end, we deliberately seek applicants who can bring different perspectives and experiences to better inform our work promoting and defending free expression, a free press and the public’s right to know.

This is a full-time position.

Applicants are encouraged to submit materials as soon as possible; applications are preferred by November 24.  

Location:

San Rafael, California.

Salary:

$75,000-$85,000 depending on experience. Includes health benefits and eligibility for FAC’s 403(b) retirement plan, including a 5% employer match.

Starting date:

Late summer/early fall 2022.

How to apply:

Apply through the link on this page. Application materials are not accepted via email.

If you have any questions regarding FAC’s Legal Fellow position or the application process, please email legalfellow@firstamendmentcoalition.org.  

October 26, 2021 | Permalink

Monday, October 25, 2021

Penney on Understanding Chilling Effects @jon_penney @MinnesotaLawRev

Jon Penney, Citizen Lab, University of Toronto; Harvard University, Berkman Klein Center for Internet & Society; Osgoode Hall Law School, is publishing Understanding Chilling Effects in volume 106 of the Minnesota Law Review. Here is the abstract.

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, and a range of social science fields toward a more comprehensive and unified understanding. I argue that conventional theories, based on fear of legal or privacy harm, are narrow, empirically weak, cannot predict or explain chilling effects in a range of different contexts, and neglect its productive dimensions—how chilling effects shape behavior. Drawing extensively on social science literature, I argue that chilling effects are best understood as a form of social conformity. Chilling effects arise out of contexts of ambiguity and uncertainty—like the ambiguity of public or private sector surveillance—but have deeper psychological foundations as well. In moments of situational uncertainty, people conform to, and comply with, the relevant social norm in that context. Sometimes this means self-censorship, but most often it means more socially conforming speech or conduct. A theory of chilling effects as social conformity has important normative, theoretical, and empirical advantages, including greater explanatory and predictive power, clarifying what chilling effects theory is for and what it produces, as well as providing a basis to navigate competing and differing chilling effect claims. It also has implications, I argue, for constitutional standing as well as the First Amendment chilling effects doctrine.

Download the article from SSRN at the link.

October 25, 2021 | Permalink

Laser and Goldman on Deepfakes, Privacy, and Freedom of Speech @ChristaLaser @ericgoldman

Christa Laser, Cleveland-Marshall College of Law, and Eric Goldman, Santa Clara School of Law, have published Deepfakes, Privacy, and Freedom of Speech at YourWitness Blog, Cleveland-Marshall College of Law, 2021. Here is the abstract.

Inauthentic media depictions can harm a person’s privacy and reputation and pose a risk to broader society, as well. “Deepfake” technology allows the creation of a type of inauthentic media using “deep machine learning” techniques, using a computer to quickly swap or simulate faces, voices, and movements. In a blog post on the YourWitness Blog (yourwitness.csulaw.org), Professor Christa Laser argues that Notice and Takedown procedures available in copyright law can be expanded to protect persons from deepfakes. Professor Eric Goldman thinks that such a reform would inhibit the dissemination of truthful information.
Download the post from SSRN at the link.

October 25, 2021 | Permalink

Koppelman on In Praise of Evil Thoughts @AndrewKoppelman @NorthwesternLaw

Andrew Koppelman, Northwestern University School of Law, has published In Praise of Evil Thoughts at 37 Social Philosophy & Policy 52 (2020). Here is the abstract.

Freedom of thought means freedom from social tyranny, the capacity to think for oneself, to encounter even shocking ideas without shrinking away from them. That aspiration is a core concern of the free speech tradition. It is not specifically concerned with law, but it explains some familiar aspects of the First Amendment law we actually have – aspects that the most prevalent theories of free speech fail to capture. It explains the prohibition of compelled speech, and can clarify the perennial puzzle of why freedom of speech extends to art and literature. It also tells us something about the limits of legal regulation, and about the ethical obligations of private actors.

Download the article from SSRN at the link.

October 25, 2021 | Permalink

Tuesday, October 19, 2021

Rozenshtein on Silicon Valley's Speech: Technology Giants and the Deregulatory First Amendment @ARozenshtein @UofMNLawSchool

Alan Z. Rozenshtein, University of Minnesota Law School, has published Silicon Valley's Speech: Technology Giants and the Deregulatory First Amendment at 1 Journal of Free Speech 337 (2021). Here is the abstract.

The technology giants that dominate Silicon Valley are facing unprecedented calls for regulation across a wide range of policy areas, ranging from content moderation and surveillance to competition, privacy, and consumer protection. But, as this Article explains, the First Amendment may stymie such efforts in ways that go far beyond the much-discussed “First Amendment Lochnerism.” Because technology companies’ core business activity is the facilitation of communication through computer code, they are particularly well suited to wield a deregulatory First Amendment. To avoid the First Amendment becoming a new, digital Lochner, this Article argues that First Amendment doctrine must sharply distinguish between arguments made on behalf of the First Amendment rights of users, which should be embraced, and those made on behalf of the companies themselves, which should be credited only if they advance the First Amendment interests of society, not merely those of the companies themselves. This Article concludes by using the recently enacted Florida law limiting social-media content moderation as a case study for how courts and other legal actors can determine what degree of First Amendment protections is appropriate for Silicon Valley’s speech.

Download the article from SSRN at the link.

October 19, 2021 | Permalink