Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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

Monday, October 18, 2021

Call For Applications: 2022 Scholarships for the Annual Conference of the ABA Forum on Communications Law

The Forum is pleased to announce that we are now accepting applications for scholarships to the 27th Annual Conference of the Forum on Communications Law, January 19-20 and February 24-26, 2022. This year’s Annual Conference will feature a virtual program, a full three-day in-person conference and host the first ever In-House Counsel Symposium.

The ABA Forum on Communications Law will award two or three full-ride scholarships to law students to attend the Forum's Annual Conference and the Media Advocacy Workshop. The scholarship includes your registration fee (including meals), lodging for the Forum conference and the Media Advocacy Workshop, airfare, and ground transportation.

To apply and learn more, click here.

October 18, 2021 | Permalink

Friday, October 15, 2021

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

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.

October 15, 2021 | Permalink

Wednesday, October 13, 2021

Corbin on The Pledge of Allegiance Revisited: Requiring Parental Consent @CarolineMCorbin @IndianaLJ

Caroline Mala Corbin, University of Miami School of Law, is publishing The Pledge of Allegiance Revisited: Requiring Parental Consent in the Indiana Law Journal. Here is the abstract.

Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states – Texas and Florida – students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children. The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the substantive due process rights of parents. These mandatory pledge laws are viewpoint-based and therefore presumptively unconstitutional. While the free speech rights of students are more circumscribed than adults, none of the established justifications for curtailing student speech rights at school apply in this case. On the contrary, forcing students to pledge against their will exemplifies all the harms of compelled speech. Finally, parents’ constitutional right to control the upbringing of their children is meant to protect parents from the state, not to empower parents to trample on the rights of their children. In the end, the parental permission rule is simply a pretext for the state’s own viewpoint-based compulsion.

Download the article from SSRN at the link.

October 13, 2021 | Permalink

Westkamp on Two Constitutional Cultures, Technological Enforcement and User Creativity: the Impending Collapse of the EU Copyright Regime? @QMIPRI

Guido Westkamp, Queen Mary Intellectual Property Research Institute, has published Two Constitutional Cultures, Technological Enforcement and User Creativity: the Impending Collapse of the EU Copyright Regime? Here is the abstract.

In Pelham, the EU Court of Justice and the German Federal Constitutional Court reached diametrically opposing conclusions on the relevance of freedom of art in copyright law. The different stances permit a speculative prediction – they can have immediate consequences for the predictable challenges against the new platform liability regime under Article 17 DSMD, and its associated dangers of wide-spread filtering and blocking. The article discusses the numerous constitutional implications with specific attention given to the respective interests affected by the new regime (authors, exploiters, users, platforms) in light of the divergent approaches from the perspective of what appears to be two rather conflicting constitutional cultures: specific perceptions of fundamental rights and proportionality under German law versus an approach tending to emphasise market integration under the EU legal order. Recent assertions by the German Constitutional Court redevising the division of competences between national and EU law permit the prediction of a disturbing future collision course between the two systems, with potentially massive implications for EU copyright law by and large.

Download the article from SSRN at the link.

October 13, 2021 | Permalink

Thursday, October 7, 2021

NPR Seeks Applications For Ishiyama Transparency in Government Legal Fellow @NPR

Ishiyama Transparency in Government Legal Fellow

Description

A thriving, mission-driven multimedia organization, NPR produces award-winning news, information, and music programming in partnership with hundreds of independent public radio stations across the nation. The NPR audience values information, creativity, curiosity, and social responsibility – and our employees do too. We are innovators and leaders in diverse fields, from journalism and digital media to IT and development. Every day, our employees and member stations touch the lives of millions worldwide.

Across our organization, we’re building a workplace where collaboration is essential, diverse voices are heard, and inclusion is the key to our success.

NPR seeks an outstanding recent law school graduate with an interest in First Amendment and media law to serve as its Ishiyama Transparency in Government Legal Fellow.  Under the guidance of NPR staff lawyers, the Legal Fellow works with NPR journalists to obtain access to public records that shed light on the operations of government.  The Legal Fellow will help reporters craft requests for records under the federal Freedom of Information Act (FOIA) and state public records laws, appeal inappropriate denials, request access to court records, and work with NPR staff lawyers and outside counsel in litigating FOIA, state public records act, and court-access cases.  Time permitting, the Legal Fellow may also assist NPR staff lawyers on other media law matters, such as reviewing amicus briefs, pre-publication review, counseling reporters on newsgathering, copyright, and First Amendment issues, defending content-related suits, and negotiating content-related agreements.  

This is a full-time, 2-year fellowship that will begin in August or early September of 2022.  The Legal Fellow will be paid $75,000 per year, plus benefits, including paid vacation.

RESPONSIBILITIES

  • Work with NPR journalists to request access to records under the federal Freedom of Information Act and state public records laws;
  • Work with NPR staff attorneys and outside counsel to prepare appeals from inappropriate denials of such requests;
  • Track federal FOIA and state public records requests and appeals across the NPR newsroom and the newsrooms of NPR Member stations engaged with NPR in collaborative reporting projects;
  • Work with NPR staff attorneys and outside counsel to pursue FOIA, state public records act, and court-access litigation, and, time permitting, to defend content-related lawsuits against NPR and NPR journalists;
  • Conduct legal research and advise NPR legal colleagues and reporters on FOIA, state public records act, court-access, and other media law issues;
  • Prepare memoranda, presentations, and other materials for internal and external audiences; and
  • Prepare training materials and work with staff lawyers and newsroom leaders to train journalists in effective use of FOIA and state public records laws.

QUALIFICATIONS

  • Outstanding academic credentials, including a J.D. from an ABA-accredited law school earned by June 2022; and
  • Bar membership in good standing in the District of Columbia, or eligibility to waive into the DC bar, by January 2023.

EDUCATION: Bachelor’s degree and J.D. from an ABA-accredited law school earned by June 2022 required.

REQUIRED SKILLS

  • Demonstrated interest in, and knowledge of, the federal Freedom of Information Act, state public records laws, court-access law, and media law, generally;
  • Superb oral and written communications skills, high ethical and professional standards, a commitment to journalism, and good judgment; and
  • Strong organizational skills and ability to manage multiple projects, to set and adjust priorities, and to work under pressure.

Does this sound like you? If so, we want to hear from you. All applications must include a resume and cover letter to be considered. 

https://recruiting.ultipro.com/NAT1011NATPR/JobBoard/af823b19-a43b-4cda-b6c2-c06508d84cf6/OpportunityDetail?opportunityId=d4db1ad8-c8e5-4563-a271-7c268c36d883

October 7, 2021 | Permalink

Tuesday, October 5, 2021

Applications For Position as Full-Time Legal Fellow Now Open at University of Georgia School of Law First Amendment Clinic @UGA1stAmClinic

From the UGA School of Law First Amendment Clinic (via Josh Moore at RCFP)

 

 

The University of Georgia School of Law’s First Amendment Clinic seeks a full-time, post-graduate Legal Fellow to start in August 2022.

The First Amendment Clinic’s mission is to defend and advance the rights of free speech, press, assembly, and petition via litigation and advocacy, while providing law students with the practice and real-world experience to become leaders on First Amendment issues.  The Clinic also serves as an educational resource on issues of open access and free expression in order to promote a better-informed citizenry. 

Under the direction of the Clinic Director, the Fellow will be expected to: (1) engage in substantial legal work including direct client representation encompassing intake/case evaluation, drafting and filing pleadings, taking discovery, motion practice, and court appearances; and (2) help to supervise law students by providing feedback on their written work, client interaction, and oral advocacy.  The Fellow will also assist with coalition building and managing referral relationships with other stakeholders committed to protecting expressive freedoms throughout Georgia and neighboring states; and participate in planning and conducting community education and outreach including presentations and panel events.  

Candidates must possess a JD degree from an ABA-accredited law school and will either be admitted to the Georgia Bar or  gain admission within 6 months of starting the position.  

Candidates should possess a strong academic record; excellent written and oral communication skills; strong organizational and time-management skills; an ability to build and maintain relationships with both students and community/professional partners; and a demonstrated commitment to public interest law. 

Preference will be given to candidates who have completed a judicial clerkship and/or who have litigation experience. 

Posting and application available here:  https://www.ugajobsearch.com/postings/223542

October 5, 2021 | Permalink

Tuesday, September 28, 2021

Schafer on Defending New York Times v. Sullivan @MatthewSchafer

Matthew Schafter, Fordham University School of Law, is publishing In Defense: New York Times v. Sullivan in volume 82 of the Louisiana Law Review. Here is the abstract.

New York Times v. Sullivan, the landmark Supreme Court case that helped shape our understanding of the First Amendment, is under attack. Twice now in opinions accompanying orders relating to certiorari, Clarence Thomas and, more recently, Neil Gorsuch have drawn into doubt the rule recognized in that case: that public official libel plaintiffs must plead and ultimately prove that a defendant published knowing the defamatory statement was false or with a high degree of awareness that it probably was. They either want to throw this “actual malice” rule out altogether or reexamine its implications and, potentially, prune it back. While some of these attacks are focused on more pragmatic concerns, a central attack, shared by both Thomas and Gorsuch, is that Sullivan is ahistorical and thus divorced from an original understanding of the First Amendment at the time of the Founding or the Reconstruction. Many commentators have seemingly accepted this assessment uncritically. This article challenges that view. It marshals substantial historical evidence that rebuts several of the justices’ specific historical arguments. More fundamentally though, through marshaling this evidence, it demonstrates that far from adopting the English common law of libel in the early United States, the Founders, federal and state legislatures, courts, and parties in litigation adopted a uniquely American understanding of freedom of the press - one where the severe rules of the English common law of libel were rejected so that citizens in a newly formed republican government could freely debate the conduct of those with power over the affairs of society.

Download the article from SSRN at the link.

September 28, 2021 | Permalink

Wednesday, September 22, 2021

Bhagwat on Whether Platforms Have Editorial Rights @JournalSpeech

Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, has published Do Platforms Have Editorial Rights? at 1 Journal of Free Speech Law 97 (2021). Here is the abstract.

Social media today plays a central, albeit vexing and divisive role in our social and political culture. In response to the alleged failures of social media, a vast array of regulatory proposals have been advanced, and in some cases legislatively enacted, that would restrict the ways in which social media platform owners may moderate content on their platforms. These proposals include, among other things, imposing common carrier status on platforms (an approach endorsed by Justice Thomas in a recent separate opinion), requiring viewpoint-neutral content moderation policies, and restricting or conditioning platforms’ Section 230 immunities in various ways. What all of these proposals have in common is that they seek to impose legal restrictions on how social media platforms control the content that they host, refuse to host, display, and prioritize. These proposals are in deep tension with the idea that platforms themselves have First Amendment rights to control what content is available or visible on their platforms—what I call editorial rights. This article considers whether, and to what extent, social media platforms enjoy First Amendment editorial rights, and the implications of those rights for assorted regulatory initiatives. I begin by defining First Amendment editorial rights, and distinguishing between different kinds of editorial rights. I then examine how, and to what extent, the courts have extended editorial rights to new communications technologies. I next turn to the specific question of internet platform editorial rights, concluding that social media platforms should indeed enjoy substantial editorial rights, though probably fewer than prototypical holders of editorial rights such as print newspapers. I conclude by considering whether current regulatory proposals are consistent with these editorial rights.

Download the article from SSRN at the link.

September 22, 2021 | Permalink

Friday, September 17, 2021

Murray on Newspaper Expungement

Brian Murray, Seton Hall Law School, has published Newspaper Expungement in volume 116 of Northwestern University Law Review Online, 2021. Here is the abstract.

Expungement law has made great strides over the past two decades, with state-level reforms broadening the types of criminal records eligible for expungement. Further, expungement has been extended beyond arrestees to those who have been convicted, thereby promising to alleviate some of the burdens of reentry. Nevertheless, expungement remedies only touch officially held information or public data possessed by different branches of government. This means that private actors, if they possess the information, are beyond the reach of expungement law. Such actors, whether individuals, background check companies, newspapers, or other firms, enjoy the ability to continue to hold and use such information. This results in a whack-a-mole problem for the successful expungement petitioner who has achieved the relief that the state allows, only to see its efficacy thwarted by private activity with the same information. Recently, one private actor, newspapers, has begun to set up processes that resemble formal expungement. Newspaper editors have responded to the limits of formal expungement by constructing their own procedures for evaluating whether to erase, seal, or alter information that is damaging to the reputation of those who have encountered the criminal justice system. This development has occurred on the heels of the right to be forgotten movement in Europe, which has gained little traction in the United States. This Essay contextualizes the phenomenon of newspaper expungement, situating it within a larger legal backdrop, before describing the stated activities and aspirations of some of the newspapers themselves. It concludes by charting how such practices relate to broader critiques and goals of criminal justice reform.

Download the article from SSRN at the link.

September 17, 2021 | Permalink

Thursday, September 9, 2021

Long on All I Really Need To Know About Defamation Law In the 21st Century I Learned From Watching Hulk Hogan @UTKLaw

Alex B. Long, University of Tennessee College of Law, has published All I Really Need to Know About Defamation Law in the 21st Century I Learned From Watching Hulk Hogan, as University of Tennessee Legal Studies Research Paper No. 418.

If there is a body of law that is ripe for reappraisal in light of changing times, it is defamation law. Changes in how news is reported and entertainment is produced have blurred some of the traditional legal rules regarding the distinction between actionable fact and non-actionable fiction. At the same time, advances in technology and changes in society have caused some – most notably Supreme Court Justices Thomas and Gorsuch – to question whether the traditional New York Times Co. v. Sullivan standard used in defamation cases should remain good law. In 2000, professional wrestling legend Hulk Hogan sued World Championship Wrestling after he was allegedly defamed in the ring by another performer during a broadcast in one of the most controversial incidents in the history of professional wrestling. The case raised some of the same issues that courts face today as they attempt to navigate a new landscape in which it is not always easy to distinguish real news from fake news and fact from opinion, parody, fiction, and hyperbole. This Essay explores the Hulk Hogan defamation litigation and how the decision illustrates some of the shortcomings of the courts’ approach to defamation cases involving publications the blur reality and fiction.

Download the article from SSRN at the link.

September 9, 2021 | Permalink

Tuesday, September 7, 2021

Conrad on Fake News, Personal Attacks, and Ideological Media Run Amok--It Is Time For Fairness Doctrine 2.0 @FordhamGSB

Mark A. Conrad, Fordham University, Gabelli School of Business, has published Fake News, Personal Attacks, and Ideological Media Run Amok – It is Time for Fairness Doctrine 2.0. Here is the abstract.

From 1949 to 1987, a regulation known as the “Fairness Doctrine” required radio and television stations to offer response time to those attacked by a broadcast editorial or commentary and required radio and television stations to offer differing views of issues of public concern. The Supreme Court upheld this rule against a First Amendment challenge, noting that the unique aspects of broadcasters justified this requirement. Ultimately, the rule was rescinded by the Federal Communications Commission on the ground that it was no longer needed because the growth of broadcasters rendered it outdated. The FCC determination also questioned its constitutionality. In more recent years, the expansion and influence of talk radio and cable news commentators coupled with the election of Donald Trump as president created a more toxic political environment with certain commentators employing distortions and even lies in their broadcasts and cablecasts. This paper advocates a return of the Fairness Doctrine, crafted to include cable television and streamed broadcasts deriving from cable as an effective way to allow opposing viewpoints for audiences that are effectively limited from access to those views because of the of ideological bent of the radio stations and cable services they watch. The article will demonstrate that a resurrection of the Fairness Doctrine is important for the future of the electorate and would be constitutionally valid.

Download the article from SSRN at the link.

September 7, 2021 | Permalink

Conrad on Fake News, Personal Attacks, and Ideological Media Run Amok--It Is Time For Fairness Doctrine 2.0 @FordhamGSB

Mark A. Conrad, Fordham University, Gabelli School of Business, has published Fake News, Personal Attacks, and Ideological Media Run Amok – It is Time for Fairness Doctrine 2.0. Here is the abstract.

From 1949 to 1987, a regulation known as the “Fairness Doctrine” required radio and television stations to offer response time to those attacked by a broadcast editorial or commentary and required radio and television stations to offer differing views of issues of public concern. The Supreme Court upheld this rule against a First Amendment challenge, noting that the unique aspects of broadcasters justified this requirement. Ultimately, the rule was rescinded by the Federal Communications Commission on the ground that it was no longer needed because the growth of broadcasters rendered it outdated. The FCC determination also questioned its constitutionality. In more recent years, the expansion and influence of talk radio and cable news commentators coupled with the election of Donald Trump as president created a more toxic political environment with certain commentators employing distortions and even lies in their broadcasts and cablecasts. This paper advocates a return of the Fairness Doctrine, crafted to include cable television and streamed broadcasts deriving from cable as an effective way to allow opposing viewpoints for audiences that are effectively limited from access to those views because of the of ideological bent of the radio stations and cable services they watch. The article will demonstrate that a resurrection of the Fairness Doctrine is important for the future of the electorate and would be constitutionally valid.

Download the article from SSRN at the link.

September 7, 2021 | Permalink

Guiora on Toleration of Free Speech: Imposing Limits on Elected Officials

Amos N. Guiora, University of Utah, S. J. Quinney College of Law, is publishing Toleration of Free Speech: Imposing Limits on Elected Officials in the Palgrave Handbook of Toleration (Mitja Sardoc, ed., 2021). Here is the abstract.

Tolerance is a nuanced issue, inevitably raising concerns regarding tolerant of what and whom. There is a sense of subjective judgment in the tolerance-intolerance debate; the terminology reflects particular norms, mores, customs, and traditions. What one might perceive as a healthy and tolerable challenging of existing acceptable “ways,” another would not tolerate because of the very challenge it poses to society. That split between tolerance-intolerance applies to both speech and conduct. It reflects everyday tensions, challenges, and conflict. In examining the tolerance-intolerance debate in the speech context there are a number of assumptions integral to a robust, liberal democracy: the freedom of speech is given a wide swath, whereby courts broadly protect the freedom of speech guaranteed in constitutions and legislation. While the speech may make certain sectors of the population uncomfortable, may be perceived as offensive, courts are tolerant of such speech provided it does not morph-transition into the realm of incitement. National leaders have significant power when they speak. The scope of this chapter is limited to analyzing the extent to which national leaders’ speech should be tolerated. Donald Trump and Bibi Netanyahu both provide salient examples regarding the extent to which speech should be tolerated. Both Netanyahu and Trump have used social media to great effect. The way that social media facilitates the spread of misinformation plays must be taken into account when analyzing the importance of contemporary leaders’ speech. In addition, the level to which qualified immunity and the freedom of speech should apply to elected officials comes under question. This chapter analyzes the extent to which qualified immunity should apply and the level of tolerance that the speech of leaders should be afforded.

Download the essay from SSRN at the link.

September 7, 2021 | Permalink

Friday, August 27, 2021

Blitz on Deepfakes and Other Non-Testimonial Falsehoods: When Is Belief Manipulation (Not) First Amendment Speech? @OCULAW

March Jonathan Blitz, Oklahoma City University, has published Deepfakes and Other Non-Testimonial Falsehoods: When is Belief Manipulation (Not) First Amendment Speech? 23 Yale J.L. & Tech. 160 (2020). Here is the abstract.

With a kind of machine learning known as “deep learning,” a computer program can quickly teach itself to recreate a person’s image or voice, manipulate it—like a puppeteer controlling a puppet—and blend it seamlessly into an environment the person never inhabited. This kind of fake video or audio, a “deepfake,” can be very difficult to distinguish from genuine camera footage. Does this kind of deepfake video or audio constitute “speech” protected by the First Amendment even when it is intended to deceive? Those who have begun to address this question have answered with a tentative “yes.” In the twenty-first century, video and audio recordings are a means of expression: We frequently share video and audio clips on social media both as acts of creative expression, and to convey information. Deepfakes are fake recordings - depicting events that haven’t occurred - but this doesn’t mean they lose First Amendment protection. The Supreme Court made clear - in the 2012 case, United States v. Alvarez, that the First Amendment presumptively protects verbal lies, so the visual lies in deepfake videos should receive First Amendment protection as well. Intentionally deceptive deepfakes might still be restricted, but only when they cause harm beyond the false belief they generate. This article, however, argues that we need a more nuanced view of deepfakes’ First Amendment status. We fail to fully understand how deepfake deception works if we define it as nothing more than the visual analogue of a verbal lie. Audiences understand that verbal lies come from speakers - and if they distrust the speaker, they will likely distrust the speaker’s claims. Video and audio recordings, by contrast, have often been viewed as consisting at least partly as evidence outside of a speaker’s authorship: Such recordings have often been treated as more reliable evidence of an event’s occurrence, on the understanding that (at least in previous decades, and to some extent even today) a video couldn’t easily be made to show an event unless it actually took place. For example, even someone who doubted the defendant’s verbal claim in United States v. Alvarez that he had been awarded Congressional Medal of Honor in 1987 might find it much harder to withhold belief in the reality of a video showing the defendant receiving a Medal of Honor from President Reagan in a 1987 ceremony. The video here would likely be understood by its audience not merely as an analogue of the defendant’s own claims or “testimony,” but rather as camera-generated evidence that was created, and stands outside of, a person’s words. A deepfake of such a Medal of Honor ceremony is thus arguably more akin to a record in a fake government Web database or register of Medal of Honor winners - a kind of deception that the Justices in Alvarez indicated in dicta would not receive First Amendment protection. Like such a fake government Web site, a deepfake would successfully deceive only because, unlike the speaker’s words, it is mistakenly viewed as a record outside of the speaker’s authorship, and deriving from some more source more insulated against the speaker’s manipulation. Courts could conceivably respond to the rise of deepfake technology by finding that - just as each person must serve as their own “watchman for truth” in assessing others’ words - they must, now that deepfakes are a reality, do so also when they (skeptically) assess the veracity of each video recording they see (or, for that matter, any other evidence that might be fabricated - from fake physical objects to false GPS readings). But just as courts in Fourth Amendment cases have refused to let advances in surveillance technology, or other digital technology, crowd out either the privacy interests protected by the Fourth Amendment or the security interests it has to leave room for, so they should - in First Amendment cases on deepfakes and other technology - refuse to allow the First Amendment right of authorship respected in Alvarez expand into a general First Amendment right to manipulate others’ environment (or their perceptions of it). This does not mean that courts can simply treat even intentionally deceptive deepfakes as wholly outside the coverage of the First Amendment. Because intentionally deceptive deepfakes can be very hard to distinguish from deepfakes that are exercises of creative fiction or other expression, restrictions on deepfakes should generally be subject to intermediate scrutiny under the First Amendment. Because even intentionally deceptive deepfakes might be targeted by government on the basis of the political beliefs they support rather than their deceptiveness, such restrictions should also be subject to viewpoint neutrality requirements. Ultimately, the type of law most likely to survive such First Amendment constraints will often likely be one that mandates disclosure of the deepfake’s nature rather than a prohibition on its creation or dissemination.

Download the article from SSRN at the link.

August 27, 2021 | Permalink

Henricksen on Disinformation and the First Amendment: Fraud on the Public

Wes Henricksen, Barry University School of Law, has published Disinformation and the First Amendment: Fraud on the Public. Here is the abstract.

If one deceives another in a manner that profits the deceiver and harms the victim, it is fraud, a crime and a tort. However, if one deceives a great number of people in a manner that profits the deceiver and harms the public, it is generally neither a crime nor a tort. It is often legal to mislead the public for profit. As a result, harmful disinformation is disseminated constantly by politicians, the media, and corporations. This disinformation causes a multitude of harms to human health, life, and property, to the environment, and to democratic institutions and systems. Because of the emergence and growth of the internet, email, and social media, disinformation spreads faster and is, in many measures, more problematic today than it has ever been. And it is getting worse. Disinformation cannot, in general, be stopped without infringing on fundamental First Amendment rights. If Congress or a state passed a law curtailing disinformation, or any broad category within it, such a content-based regulation would not survive a First Amendment challenge under strict scrutiny. Why? Because disinformation and other terms like it (e.g., fake news, lies, and misinformation) are broad and vague, and encompasses both protected and unprotected speech. This Article argues that some of the most harmful disinformation, which results in widespread damage, should be deemed unprotected speech because it is fraudulent speech and not merely false speech. Harmful disinformation that amounts to “fraud on the public” is distinct from (and worse than) other kinds of disinformation. The Article sets forth elements that must be met to qualify as fraud on the public. Conduct that qualifies as fraud on the public, rather than merely spreading disinformation, should be deemed either to fit within the fraud exception to the First Amendment, or to have its own carve-out from First Amendment protections. This argument is, in some ways, a radical one; the fraud exception to the First Amendment normally applies only to behavior satisfying the elements of civil or criminal deceit, or one of the other long-established categories of fraudulent speech, such as securities fraud or false advertising. However, because fraud on the public is carried out in the same manner as fraud on the individual, and because the harm it causes to individuals, society, and the environment is as bad or worse than fraud on the individual, fraud on the public, like fraud, runs counter to the very aims of the free speech provision of the First Amendment. As a result, fraud on the public should be deemed unprotected fraudulent speech. Failure to do this will result in the continued growth and spread of the most harmful disinformation, further damaging public health and the environment, poisoning political discourse, and generating further attacks on democracy.

The full text is not available from SSRN.

August 27, 2021 | Permalink

Tuesday, August 24, 2021

Newly Published: Having Your Say: Threats to Free Speech in the 21st Century (J. R. Shackleton, ed., IEA, 2021) @iealondon

J. R. Shackleton, Institute of Economic Affairs (IEA); Westminster Business School; University of Buckingham, is the editor of Having Your Say: Threats to Free Speech in the 21st Century (IEA, 2021). Here is the abstract.

Free speech is, with free trade, freedom of enterprise and security of property, one of the key features of classical liberalism. It is currently being undermined, for a variety of plausible reasons, by government, social and mainstream media companies, and the behaviour of individuals, firms and non-profit organisations. Having thrown off the obvious shackles on free speech in the 1960s and 1970s, we are now imposing new forms of restriction on freedom of thought and expression. Young people in particular are being socialised into a censoriousness about dissident behaviour and speech which is reminiscent of totalitarian regimes. One reason for suppressing free speech is concern with ‘hate crimes’. But speech bans have a long history, which shows that, whatever the intent, they are often more likely to hurt disadvantaged groups than protect them. Recent restrictions on speech in western Europe, for example, have been copied to sinister purpose by oppressive governments. Political extremism is more widespread, but less dangerous, than is often supposed by mainstream politicians and commentators. The way to tackle it is by intelligent policing to restrict opportunities for violence rather than by blanket bans on freedom of expression. The presence of disturbing online content is leading governments towards increasing regulation of social media and Internet hosts. But the attempt to eliminate disinformation and harm from the Internet is likely to be doomed to failure. Recent legislative proposals will not achieve what they are intended to achieve, but may cause innovation and competition to suffer. Free speech is considered by both right and left as negotiable or even dispensable when faced with issues such as Covid-19 or Black Lives Matter. In such circumstances our political elites pursue a particular narrative through mainstream and social media and effectively ‘cancel’ those who express opposition or even mild doubt. The prevailing mood of political correctness inhibits comedians and makes people ashamed of what they or their parents used to laugh at in the past. While the consensus may be that there have to be some externally imposed limits on comedic speech, we can’t assume that those who police this speech will act reasonably. A healthy society needs to be able to laugh at itself, even if it occasionally hurts. A neglected area of concern is ‘commercial free speech’ – what advertisers can and can’t say. UK advertising is widely praised worldwide, and a major export earner. But it is increasingly restricted both by government bans and by the Advertising Standards Authority, an unrepresentative body which promotes a form of social engineering and has called for the regulation of political speech. Some aspects of religious freedom are under threat. Public Space Protection Orders and Community Protection Notices have been activated against Christian activists handing out leaflets and holding placards or even silently praying in anti-abortion demonstrations. Proselytising Christians have also been investigated for alleged hate crimes, while some people have lost their jobs for asserting Christian values. Muslims are also particularly at risk from anti-extremist policies. Universities, like other organisations, have the right to prohibit certain types of expression and behaviour from their premises, and impose contractual obligations on employees. However, recent challenges to free speech in higher education, often driven by radical students demanding suppression of ideas, ‘no platforming’ and sanctions against or dismissal of staff, are a worrying phenomenon. A major part of the problem is the lack of institutional diversity in higher education. Trade unions, in the past among the fiercest proponents of free speech, have moved away from this and instead focus on a ‘therapeutic’ role which requires them to protect members from speech that is felt to threaten harm or vaguely defined ‘offence’. ‘Offence’ has indeed been too widely accepted as a reason for speech restrictions. People may feel offended without being offended in a significant way, and even those being offended may suffer no meaningful harm. And while people can be compensated for harm from free speech, there is no way of compensating people for removing the freedom to speak. In any case, on purely pragmatic grounds it is nearly always best to allow serious disagreements to be vigorously debated rather than suppressed.

Download the etext from SSRN at the link.

August 24, 2021 | Permalink

Thursday, August 19, 2021

Douglas on Defamation Actions and Australian Politics

Michael Douglas, The University of Western Australia Law School, is publishing Defamation Actions and Australian Politics in the UNSW Law Journal Forum (2021). Here is the abstract.

In recent years, politicians have been frequent participants in Australian defamation litigation. [Former] Attorney-General Christian Porter’s recent claim against the ABC and journalist Louise Milligan is a notable example of the weaponisation of defamation in Australian politics. This brief article reviews prominent examples of where politicians have commenced or threatened defamation proceedings. The focus is on cases in which politicians are plaintiffs, although some cases mentioned below also involve politician defendants. The article considers whether the trend of politicians litigating defamation is desirable, and how it will be affected by the amendment of the Uniform Defamation Acts once the 2020 Model Defamation Amendment Provisions are implemented. It begins by considering the value of politicians’ reputations, which defamation law may protect.

Download the article from SSRN at the link.

August 19, 2021 | Permalink

The Free Press In Afghanistan After the Taliban Take Over

From the Washington Post, a look at what happens to the nascent free press in Afghanistan now that the Taliban has taken over. 

August 19, 2021 | Permalink

The Free Press In Afghanistan After the Taliban Take Over

From the Washington Post, a look at what happens to the nascent free press in Afghanistan now that the Taliban has taken over. 

August 19, 2021 | Permalink