Tag Archives | Scholarship

First Amendment Limits on State Laws Targeting Election Misinformation

At long last, the article Evan Ringel and I wrote on First Amendment Limits on State Laws Targeting Election Misinformation has finally been published in the First Amendment Law Review.  The piece expands on a whitepaper we wrote in 2021 that cataloged state efforts to regulate election-related speech (available on SSRN).

I’ve pasted the abstract below, but if you want to read it in bite size chunks, I will be posting a series of excerpts at the Volokh Conspiracy this week.  The first post just went up today!

Here is the abstract:

The last two presidential election cycles have brought increased attention to the extent of misinformation – and outright lies – peddled by political candidates, their surrogates, and others who seek to influence election outcomes. Given the ubiquity of this speech, especially online, one might assume that there are no laws against lying in politics. It turns out that the opposite is true. Although the federal government has largely stayed out of regulating the content of election-related speech, the states have been surprisingly active in passing laws that prohibit false statements associated with elections.

Prompted by concern about the impact of misinformation on the American electorate, we set out to assess the extent to which existing state and federal laws limit election misinformation and the prospect that these laws will survive First Amendment scrutiny. In doing so, we reviewed more than 125 state statutes that regulate the content of election-related speech, ranging from statutes that prohibit false and misleading factual statements about candidates to laws that indirectly regulate election-related speech by prohibiting fraud and intimidation concerning elections.

What we found is that state statutes regulating election misinformation vary widely in the types of speech they target and the level of fault they require, with many statutes suffering from serious constitutional deficiencies. Statutes that target defamatory speech or speech that harms the election process, is fraudulent, or that intimidates voters are likely to be permissible, while statutes that target other types of speech that have not traditionally been subject to government restriction, such as statutes that target merely derogatory speech, will face an uphill battle in demonstrating that they are constitutional. Furthermore, statutes that impose liability without regard to the speaker’s knowledge of falsity or intent to interfere with an election are especially problematic.

Political speech has long been viewed as residing at the core of the First Amendment’s protections for speech. Yet it has become increasingly clear that lies and other forms of misinformation associated with elections are corrosive to democracy. The challenge, of course, is in developing regulatory regimes that advance the interest in free and fair elections while at the same time ensuring that debate on public issues remains uninhibited, robust, and wide-open. This is no easy task. Regardless of whether individual statutes survive First Amendment scrutiny, it is useful to understand the breadth and depth of state attempts to deal with lies, misinformation, intimidation, and fraud in elections. As we point out, any legislative approach to combatting election misinformation must be part of a broader societal effort to reduce the prevalence of misinformation generally and to mitigate the harms that such speech creates.

You can read the full version of the article here.

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Beyond the Marketplace of Ideas: Bridging Theory and Doctrine to Promote Self-Governance

I am thrilled to announce that my article on First Amendment theory, “Beyond the Marketplace of Ideas: Bridging Theory and Doctrine to Promote Self-Governance,” recently came out in the Harvard Law & Policy Review.  Here is the abstract:

No theory dominates both public and judicial understanding of the First Amendment quite like the “marketplace of ideas.” While faith in free competition among ideas holds tremendous appeal, as an organizing theory for the formulation of First Amendment doctrine it has proven to be deeply problematic. The theory rests on an overly simplified account of public discourse, treating speech as a commodity that can be allocated through market-style transactions, and it has come to embody an extreme version of libertarian economic thinking that is undermining the very democratic processes the First Amendment was intended to serve and strengthen.

The belief that public discourse takes place within a self-regulating market that needs only the presence of more speech to produce “truth” has not held up to empirical scrutiny. Indeed, social scientists who study the impact of the Internet, social media, and other forms of digital information sharing on our public sphere paint a disturbing picture of the health of American democracy. Our current media ecosystem produces too little high-quality information; we tend to be attracted to information that confirms our existing biases about the world and to share this information with little regard for its veracity; and there are an increasing number of actors who seek to leverage these vulnerabilities to distort public discourse and undermine democratic decision-making.

This article applies the insights of constitutional structuralism to argue that the First Amendment was intended to play a vital role in the American constitutional system: facilitating self-governance by ensuring that citizens are capable of participating in the deliberative processes that are essential to a representative democracy. With self-governance as the touchstone, it lays out three principles that should guide the development of First Amendment doctrines. First, we need to move beyond the idea that the First Amendment’s only function is to enshrine free market ideology. Second, the First Amendment does not bar the government from addressing market failures in the actual markets in which communication takes place, especially when those failures undermine the public’s capacity for self-governance. Third, the capacity for self-governance turns, at least in part, on whether the public has the information it needs to effectively evaluate issues of public policy.

This article proposes a number of ways to bridge theory and doctrine to promote self-governance, including using antitrust law to address concentrated economic power in communication markets, expanding and enforcing privacy and consumer protection laws to create more competition among speech platforms, and initiating programs that support journalism and other knowledge institutions within society. It also argues that as an influential participant in public discourse, the government should have an obligation to wield its influence in ways that support self-governance, not undermine it by misleading its citizens or starving them of the information they need. I therefore propose two new rights that should be recognized under the First Amendment: a right not to be lied to by the government when it undermines the public’s capacity for self-governance and a right to information in the government’s possession that can assist the public in its efforts to understand and evaluate issues of government policy.

You can download the full paper on SSRN.

This article lays the groundwork for a series of articles I plan to write examining various First Amendment doctrines from the perspective of whether they advance or hinder self-governance. The first of these follow-up articles argues for an expanded right of access to government information. I’ll be sending that out to law reviews later this fall.

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The James R. Cleary Prize for Student Media Law and Policy Research in 2021

The UNC Center for Media Law and Policy is now accepting submissions for the James R. Cleary Prize for student media law and policy research published in 2021. The annual award competition, which highlights the best student-authored scholarly articles on media law and policy related topics, honors the legacy of James R. Cleary, an attorney who practiced for 56 years in Huntsville, Ala.  He was particularly interested in the communications field and media law issues.  Cleary’s daughter, Johanna Cleary, is a 2004 Ph.D. graduate of the UNC Hussman School of Journalism and Media.

You can read about last year’s winners, Scott Memmel, a 2020 graduate of the University of Minnesota Hubbard School of Journalism and Mass Communication and Jeeyun (Sophia) Baik, a 2021 graduate of the USC Annenberg School for Communication and Journalism, here.

The prize competition is open to all college and university students. Up to three winners will be selected, with a first prize of $1,000, a second prize of $500, and a third prize of $250. The prizes will be awarded to the authors of published papers that most creatively and convincingly propose solutions to significant problems in the field of media law and policy, including First Amendment speech and press issues. All methodologies are welcome.

The deadline for submission is April 15, 2022.

Rules

  1. The author of the submitted publication must have been enrolled in a graduate or undergraduate degree-granting program in the United States at the time the article was accepted for publication. This includes, but is not limited to, students enrolled in M.A. and Ph.D. programs, law school (including J.D., LL.M., and J.S.D. candidates), and other professional schools (including M.B.A. candidates).
  2. The submitted paper must have been published in a law review or peer-reviewed journal during the 2021 calendar year.
  3. Each student may submit only one entry.
  4. Jointly authored papers are eligible, provided all authors meet the eligibility requirements for the competition. If a winning paper has more than one author, the prize will be split equally among the co-authors. No work with a faculty co-author will be considered.
  5. Each entry must be the original work of the listed author(s). The author(s) must perform all of the key tasks of identifying the topic, researching it, analyzing it, formulating positions and arguments, and writing and revising the paper.
  6. Papers will be evaluated based on a number of factors, including thoroughness of research and analysis, relevance to the competition topic, relevance to current legal and/ or public policy debates, originality of thought, and clarity of expression.
  7. The prize will be monetary. Winners will be required to submit a completed W-9, affidavit of eligibility, tax acknowledgment and liability release for tax purposes as a condition of receiving the cash prize.
  8. In the unlikely event that entries are of insufficient quality to merit an award, the Center for Media Law and Policy reserves the right not to award some or all of the prizes.

Submission Process

  • All entries must be received by 11:59 p.m. EST on April 15, 2022.
  • Entries must be sent via email to medialaw[at]unc.edu with the following in the subject line: “James R. Cleary Prize Submission: [Name of Author]”
  • Papers should be submitted in Portable Document Format (.pdf).
  • Entries MUST include a signed cover sheet that may be downloaded from the Center for Media Law Policy’s website here.

A review committee comprised of faculty and affiliates from the UNC Center for Media Law and Policy will review the submissions and determine the winning paper(s). The decisions of the committee are final. Winners will be notified and final results will appear on the Center’s website in late spring. Due to the large number of expected entries, the Center cannot contact all non-winning entrants.

For more information, please visit our Cleary Competition page.

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State Regulation of Election-Related Speech in the U.S.: An Overview and Comparative Analysis

I’m excited to announce that the UNC Center for Media Law and Policy, in partnership with the Center for Information, Technology, and Public Life (CITAP), just published a research report titled State Regulation of Election-Related Speech in the U.S.: An Overview and Comparative Analysis.

The report presents a comprehensive analysis of state efforts to regulate the content of election-related speech and is part of an ongoing multi-method research project focused on how platforms and digital media are changing electoral politics. It extends and builds on a report the Center published with CITAP in September 2020, Regulating the Political Wild West: State Efforts to Disclose Sources of Online Political Advertising, that examined disclosure and recordkeeping regulations for online political advertising.

You might be thinking, given the extent of misinformation associated with the last election, that there are no laws against lying in politics. It turns out that the opposite is true. Although the federal government has largely stayed out of regulating the content of election-related speech, the states have been surprisingly active in passing laws that prohibit false statements associated with elections. By our count, forty-eight states and the District of Columbia have such laws!

For this report, we reviewed more than 125 state statutes that regulate the content of election-related speech. These laws take one of two basic forms: statutes that directly target the content of election-related speech, and generally applicable statutes that indirectly implicate election-related speech by prohibiting intimidation or fraud associated with an election.

What we found is that these election-speech statutes deviate significantly from longstanding theories of liability for false speech. First, the statutes cover a broader range of speech than has traditionally been subject to government restriction: the statutes cover everything from merely derogatory statements about candidates (defamation requires false statements that create a degree of moral opprobrium) to false information about ballot measures, voting procedures, and incumbency. Second, a substantial number of the statutes impose liability regardless of whether the speaker knew the information was false or acted negligently.

Obviously, many of the statutes could be subject to significant First Amendment challenges.  For purposes of this report, however, we have not made any assessment as to whether specific statutes are constitutional. We’ll be doing that examination in a later phase of this project.

To aid in the analysis and comparison of the statutes, we created a multi-level taxonomy of the types of speech the statutes target and cataloged which states have statutes that fall within each category. In the appendix, we provide a summary for each state that outlines the relevant statutory provisions and provides a brief description of the restrictions the statutes impose as well as the types of speakers to which they apply.

Political speech has long been viewed as residing at the core of the First Amendment’s protections for speech. Yet it has become increasingly clear that lies and other forms of misinformation associated with elections are corrosive to democracy. Regardless of whether individual statutes survive First Amendment scrutiny, it is useful to examine the breadth and depth of state efforts to deal with lies, misinformation, intimidation, and fraud in elections. The surprising number of statutes already on the books clearly demonstrate that state legislatures see a problem that needs to be addressed. Moreover, apart from government efforts to impose civil and criminal liability for election-related speech, these statutes (and the taxonomy we describe in this report) can be useful to social media platforms and other intermediaries that facilitate election-related speech. If nothing else, the statutes provide a partial roadmap for identifying the types of speech – and election harms – that may warrant intervention.

The report and associated research is now up on the CITAP Digital Politics site, which includes pages for every state that outlines the relevant statutory provisions and provides a brief description of the restrictions the statutes impose as well as the types of speakers to which they apply (you can also download the report itself from SSRN).

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2020 Cleary Writing Competition Winners Announced

The UNC Center for Media Law and Policy is thrilled to announce the winners of the third annual James R. Cleary Prize for the best student published scholarly articles on media law and policy.

This year’s first place winner is Scott Memmel, a 2020 graduate of the University of Minnesota Hubbard School of Journalism and Mass Communication, for his article, “Crossing Constitutional Boundaries: Searches and Seizures of Electronic Devices at U.S. Borders,” which was published in Communications Law and Policy.  Memmel’s article examines searches and seizures of electronic devices at U.S. borders and “seeks to chart the legal landscape by (1) providing key background information, (2) discussing the First Amendment angle of warrantless searches of journalists’ devices, and (3) detailing the split among federal circuit and district courts regarding the Fourth Amendment question of whether border agents need reasonable suspicion to conduct forensic searches of electronic devices.”

The second place winner is Jeeyun (Sophia) Baik, a 2021 graduate of the USC Annenberg School for Communication and Journalism. Her article, “Data privacy and political distrust: corporate ‘pro liars,’ ‘gridlocked Congress,’ and the Twitter issue public around the US privacy legislation,” was published in Information, Communication & Society. Baik’s article “explores how emerging US data privacy regulations are discussed at state and federal levels, examining Twitter discourse around Senate public hearings on data privacy and public forums on the California Consumer Privacy Act (CCPA).”

Memmel will receive a $1,000 cash award and Baik will receive $500.

Scott Memmel

Scott Memmel, M.A., Ph.D. is a postdoctoral associate at the University of Minnesota Hubbard School of Journalism and Mass Communication (HSJMC), where he earned his Doctor of Philosophy degree in 2020 and his Master of Arts degree in 2017.

Memmel’s research, which focuses on media law, history, and ethics, has appeared in several respected publications, including Communication Law & Policy. His dissertation and upcoming book to be published by the University of Missouri Press focus on the history and law of the press-police relationship in the United States. Memmel’s dissertation, “Pressing the Police and Policing the Press: The History and Law of the Relationship Between the News Media and Law Enforcement in the United States,” was awarded the 2021 Association for Education in Journalism and Mass Communication (AEJMC) Nafziger-White-Salwen Dissertation Award and the 2020 University of Minnesota Hubbard School of Journalism and Mass Communication Ralph D. Casey Dissertation Research Award. Memmel has worked for several years at the Silha Center for the Study of Media Ethics and Law, where he previously served as editor of the Silha Bulletin, a thrice-yearly publication focusing on current events related to media law and ethics.

Memmel also teaches several courses at the University of Minnesota, including mass communication law and media ethics. Previously, he held several roles at WSUM 91.7 FM while completing his Bachelor of Arts degree at the University of Wisconsin.

Jeeyun (Sophia) Baik

Jeeyun (Sophia) Baik is an incoming postdoctoral researcher at the Center for Long-Term Cybersecurity at UC Berkeley School of Information. She earned her doctoral degree from the Annenberg School for Communication and Journalism at the University of Southern California. Her research explores socio-political implications of media/technology law and policy for those at the margins of society. She particularly examines various stakeholders’ engagement in the governance of media and information technology, covering the issues of privacy/surveillance, content moderation, and mis/disinformation.

Baik’s dissertation closely investigated the “civil right” of data privacy as a regulatory alternative to address discrimination and structural inequities being reinforced in the digital era. Mapping civil society perspectives onto the data-driven political economy and emerging US privacy laws (e.g., California Consumer Privacy Act), she articulated the limitations of traditional privacy regulations and suggested new ways to collectively envision a more just framework.

Baik’s research has been published in Information, Communication & Society, Telematics & Informatics, International Journal of Communication, and Mass Media & Society. Baik also holds a BA in International Relations from Seoul National University in South Korea, and a master’s in Public Diplomacy from the University of Southern California. She produced broadcasting news prior to the doctoral program.

You can read more about the Cleary Prize competition here. Please check the Center’s blog for an announcement of next year’s deadline to apply.

Congratulations to the winners!

 

 

 

 

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