Law and Policy 2019 Abstracts
Open Competition
Boycotts, Blacklists, and De-Platforming: The ACLU Wrestles with Private Censorship • Stephen Bates, UNLV • In the late 1940s and the 1950s, the ACLU wrestled with the concept of “private censorship”–protests against speech that have the effect of suppressing the speech. The issues arose over identity, such as the NAACP’s protest against the TV adaptation of “Amos ‘n’ Andy”; over morality, such as the Legion of Decency’s protest against the film “The Miracle”; and over ideology, such as the American Legion’s protest against films featuring Jose Ferrer and other purported communists and fellow travelers. The issues were difficult, and the ACLU tried various tests and formulations for distinguishing proper counter-speech from improper suppressive speech. This paper is based on internal documents from the ACLU, now in the Princeton University archives.
Lost in translation: The disturbing decision to limit access to audio court files for podcasters • Kelli Boling, University of South Carolina • In its October 2017 decision in Undisclosed LLC v. The State, the Georgia Supreme Court recognized that Georgia Rule 21 allows for public access to court files including both inspecting and copying records. However, the court held that a court reporter’s audio files from trial are not actually court records because only the official transcripts, not the audio tapes, are filed with the court. Therefore, audio tapes cannot be copied by the media for use in podcast production. This article explores the problems with this Supreme Court decision and argues that the courts need to revisit the right to access and produce a definitive answer to the current dilemma for emerging media in the wake of true crime podcast growth.
Troll Storms and Tort Liability for Speech Urging Action by Others • Clay Calvert, University of Florida • This paper examines when speakers, consistent with First Amendment principles of free expression, can be held tortiously responsible for the actions of others with whom they have no contractual or employer-employee relationship. Recent lawsuits against Daily Stormer publisher Andrew Anglin for sparking “troll storms” provide timely analytical springboards. The issue is particularly problematic when a speaker’s message urging action does not fall into an unprotected category of expression such as incitement or true threats and thus, were it not for tort law, would be fully protected. The paper also reviews the U.S. Supreme Court’s “authorized, directed, or ratified” test for vicarious liability established more than thirty-five years ago in the pre-Internet era case of NAACP v. Claiborne Hardware Co. The paper concludes by proposing a framework for vicarious liability when speakers urge action that results in others’ tortious conduct.
Media Mea Culpas and Journalistic Transparency: When News Outlets Publicly Investigate Their Reportage • Clay Calvert, University of Florida • This paper examines some important legal issues and implications surrounding reports commissioned by journalism organizations like Rolling Stone to investigative their own journalistic flaws and failures. Specifically, the paper explores how such reports carry the danger in cases such as Eramo v. Rolling Stone, LLC of blurring the crucial line separating journalism ethics from media law. Additionally, the paper examines the possible impact of third-party reports on the critical issue of truth and falsity in defamation lawsuits.
Wither Zauderer, Blossom Heightened Scrutiny? • Clay Calvert, University of Florida • This paper examines how the United States Supreme Court’s 2018 decisions in the First Amendment cases of National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees muddle an already disorderly compelled-speech doctrine. Specifically, dual five-to-four decisions in Becerra and Janus raise key questions about the level of scrutiny – either a heightened test or a deferential variant of rational basis review – against which statutes compelling expression should be measured. Critically, Becerra illustrates the willingness of the Court’s conservative justices to narrowly confine the aging compelled-speech test from Zauderer v. Office of Disciplinary Counsel. Furthermore, the paper explores how Justice Clarence Thomas’s concurrence in a third 2018 decision – Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission – heightens problems with the compelled-speech doctrine. The paper concludes by proposing multiple criteria for the Court to consider when determining the level of scrutiny to use in compelled-speech cases.
Exploring Legal Solutions to Address the Problem of Hate Speech in the United States • Caitlin Carlson, Seattle University • This paper explores potential legal remedies for addressing the proliferation of hate speech in the United States. Solutions include an anti-hate speech law, a change in the federal threats statute, group defamation, and reconsidering intentional infliction of emotional distress as a viable response for victims of hate speech. The strengths and weaknesses of each approach are analyzed in light of existing jurisprudence and intentional infliction of emotional distress is identified as the best path forward.
‘Funding Secured:’ A Forty Million Dollar Tweet that Highlights First Amendment Issues Associated with Regulating Speech on Social Media • Samuel Cohn • The following article is written in the wake of a legal battle that began in Augusts 2018. The parties involved are Elon Musk and the Securities and Exchange Commission. To limit the discussion of Musk’s behavior on Twitter to Securities law, largely the way mass media has done to this point, ignores Constitutional realities with respect to the use of social media in 2019. It is true that the legal battle between the SEC and Musk has more significance for corporations and their executives than the average person posting online. This reality does not discount the gravity of Musk’s situation. It is also true that Elon Musk is not the average Twitter user – he is a billionaire with twenty-five million followers and stands at the helm of multiple corporations. And yet, Elon Musk is an American citizen with the same rights as any other American in the United States. As such, he deserves the same constitutional protections. We can look at his recent involvement with the SEC as a prime example of the issues associated with regulating individual speech online as well as the chilling effects that stand to follow if said regulation is executed without considering the potentially adverse effects to the exercise of protected speech. Federal agencies, such as the SEC, should act with extreme caution when regulating the communication of individuals on social media as the legal boundaries of this new mode of communication are not fully understood.
Privacy Exceptionalism Unless It’s Unexceptional: How the American Government Misuses the Spirit of Privacy in Two Different Ways to Justify both Nondisclosure and Surveillance • Benjamin W. Cramer, Bellisario College of Communications, Pennsylvania State University • This article explores the American government’s contradictory stances toward privacy, via an analysis of the jurisprudence surrounding the Freedom of Information Act and the Privacy Act, while comparing that to surveillance-oriented jurisprudence surrounding the actions of the national security and law enforcement establishments. The article argues that the government has displayed two contradictory stances toward privacy in these endeavors: it cites privacy concerns to withhold documents while ignoring privacy during its mass surveillance of citizens. This contradiction allows the government to violate the spirit of government transparency and the value of privacy in two different ways while becoming more secretive across the board. The article starts with an analysis of trends that have enabled agency rejections of FOIA requests for often facetious reasons of personal privacy – what researchers have dubbed “privacy exceptionalism.” This is followed by a similar analysis of the Privacy Act as another example of the American government’s professed concern for protecting personal privacy. The article then reviews how the national security and law enforcement establishments have largely ignored personal privacy as they conduct widespread electronic surveillance of citizens. The evidence will point to a new type of “privacy unexceptionalism” because privacy values have been unable to overcome the excesses of the surveillance state. The article concludes that the contradictions between these two views of privacy in the American government have enabled new patterns of secrecy and nondisclosure.
Past Imperfect: Packingham, Public Forums, and Tensions Between Media Law’s Present and Internet Regulation’s Future • Anthony Fargo, Indiana University • Justice Anthony Kennedy suggested in Packingham v. North Carolina that the internet had supplanted physical spaces as essential public forums for many users. The analogy is problematic because public forums are usually government-controlled spaces, while internet platforms are privately owned. Comparing the internet to other media generally is similarly problematic because the internet has no comparison. This paper argues that courts should view the internet as a unique medium with unique issues.
Forum Delegation: The Birth and Transposition of a New Approach to Public Forum Doctrine • Brett Johnson, University of Missouri; Shane Epping, University of Missouri • This paper explores the concept of forum delegation: the power of government officials to suggest which forums to allow speakers to use. The concept is born out of a recent legal battle between the University of Minnesota and conservative speaker Ben Shapiro, in which the UMN required Shapiro to speak in a venue away from the heart of campus due to concerns over the school’s ability to provide adequate security for the event. The paper first analyzes the UMN case to assess the constitutionality of forum delegation in the context of regulating speech and public universities. Next, it applies Robert Post’s theory of constitutional domains to transpose forum delegation from the public university context to situations in which cities must deal with controversial speakers. The goal in explicating the concept of forum delegation within this latter context to is give cities a tool in which to constitutionally balance the interests of speakers, audience members, public safety concerns, and efficient resource management. Such a tool can be especially helpful at a time when provocateurs have sought to weaponize the First Amendment through politicizing and polarizing free speech principles.
TL;DR and TC;DU: An Assessment of the Length and Complexity of Social Media Policies • Jonathan Obar, York University; Andrew Hatelt • A study of the length and complexity of terms of service (TOS) and privacy policies (PP) for 10 social media services. Average TOS is 26,320 words and PP 7,984 words, with most policies written at a grade 12 or college reading level. These findings may contribute to critiques of notice privacy policy, providing empirical evidence that policies continue to be “too long” and “too complicated”, contributing to users that “didn’t read” and “don’t understand”.
“I also consider myself a First Amendment lawyer” • Jonathan Peters • Charles Harder. Lin Wood. Tom Clare. They are among a small number of American lawyers who have significant experience bringing claims against news organizations for their editorial activities. They play important roles in the news ecosystem, and they are subjects worthy of scholarly attention. Their perspectives about their work, which is reshaping media law, can contribute to a better understanding of claims against the press. With that in mind, we interviewed eight such lawyers about their practices.
Deciding Fair Use • Amanda Reid, UNC Chapel Hill • The epic legal battle between Google and Oracle is knocking on the SCOTUS’s door – again. Viewing the jury verdict “as advisory only,” the Federal Circuit independently re-weighed the fair use factors and concluded that allowing Google to commercially exploit Oracle’s work would “not advance the purposes of copyright.” This case raises important and timely questions about how to conceptualize and operationalize fair use. The ontological nature of copyright fair use is often misunderstood. As a mixed question of law and fact, fair use does not fit neatly into the law/fact paradigm, which typically guides decision making authority. Is fair use a fact question for the jury or a legal question for the court? On appeal, are fair use decisions reviewed deferentially or de novo? In other words, is fair use a question of fact for the jury and off limits to appellate court second-guessing, or is fair use a question of law for which an appellate court can decide anew? Rather than hiding behind the “slippery” distinction between “fact” and “law,” this essay highlights the plainly political nature of allocating decision making authority. The policy question is whether we want speech-protective rights assessed by a judge or a jury. Who has the institutional capacity to do a better job? Who do we trust more?
The Trouble With “True Threats” • Eric Robinson, University of South Carolina; Morgan Hill, University of South Carolina • With abusive language endemic online, the U.S. Supreme Court’s decision in Elonis v. United States did not resolve many issues in determination whether a statement is a “true threat.” In the absence of guidance, courts have applied various factors to rule in these cases. This paper quantifies and analyzes how courts have applied these factors in various cases, showing the need for clear standards for what communication can be considered “true threats.”
The Tribal University: Factions, iGen and the Threat to Free Speech on Campus • Joseph Russomanno, Arizona State University • The American college campus was once the ultimate marketplace of ideas. Now, speakers are sometimes shouted down or disinvited. Fear of trauma abridges classroom discussion. As the nation tribalizes, so do college students – members of iGen and psychologically fragile. This paper examines the interconnectedness of these issues. It also invokes factions – the tribalism of America’s founding era – and illustrates how James Madison’s approach to control them can be applied to speech on the contemporary campus.
A Structural Imperative: Freedom of Information, the First Amendment and the Societal Function of Expression • A.Jay Wagner • In the United States, the ability to gain access to government information is predicated by statute, the 1966 FOIA. Despite influential First Amendment scholars asserting access to government information to be a necessary corollary, the Supreme Court has only partially recognized such a right. The manuscript tracks this legal trajectory and examines international constitutional rights of access and explores why access has been rhetorically identified as an imperative yet has not received legal priority.
The Understanding of Absolute Right to Freedom of Expression Concerning Hate Speech in the Case of the Charlottesville Incident • Qinqin Wang; Roxanne Watson, University of South Florida • The purpose of this paper is to explore whether there is an absolute right to freedom of expression with regard to hate speech, and more specifically, whether tolerance should be exercised toward speech even in circumstances where this speech presents a clear and present danger to the public. The paper will delve into the decision by the Virginia Court that allowed the rally in Charlottesville which resulted in the death of a 32-year old woman.
Algorithms, Machine Learning, and Speech: The Future of the First Amendment in a Digital World • Sarah Wiley • By mediating how information is produced, distributed, and consumed, algorithms have a vast impact on how individuals perceive the world and thanks to machine learning and big data, they do so more autonomously than ever. This article examines how First Amendment jurisprudence has struggled to keep up and recommends a way to realign the doctrine with its underlying values of democratic self-governance, the distribution of knowledge and ideas, and individual autonomy in light of machine learning.
Neutral Reportage “Missing In Action” In U.S. Law But Expanding In Foreing Law As A Libel Defense • Kyu Ho Youm • Few media law scholars and practitioners in the U.S. have paid close attention to neutral reportage in foreign law. To fill the glaring void in the study of neutral reportage as a fascinating export from American law, this paper examines neutral reportage as a case of “reverse perspective.” Three questions provide the main focus of this study: (1) Why was Anglo-American law on republication of defamatory statements problematic for news reporting?; (2) How has neutral reportage been recognized as a libel defense in foreign law?; (3) How is neutral reportage similar to, and different from, the “public interest” defense in England and other countries?
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