Author Archive | David Ardia

New Article on Popular Sovereignty and a Right to Know About the Government

My recent article on Popular Sovereignty and a Right to Know About the Government just came out in the Arizona Law Review. In the article I argue that a right to know is not only implied by the First Amendment but is fundamental to the Constitution’s system of checks and balances and is rooted in the principle of popular sovereignty. The Framers’ commitment to self-government requires that citizens have access to information about their government if they are to exercise their sovereign authority over the government. Recognizing a right to know as a constitutional imperative, rooted in the people’s sovereign authority, establishes a durable foundation for limited government.  Here is the full abstract:

Imagine that a future U.S. President, upset about negative press coverage and plummeting approval ratings, issues an executive order instructing all federal agencies to henceforth provide no public access to executive branch records and meetings. Imagine further that the President’s party controls both chambers of Congress, which rescinds all statutory disclosure obligations imposed on the executive branch, including the Freedom of Information Act (FOIA), Government in the Sunshine Act, and Presidential Records Act. Is the public’s ability to understand the actions of government solely a matter for their elected representatives to decide? Disturbingly, many courts and scholars seem to think so.

If the government attempts to keep its citizens in the dark, or even actively misleads them, how can this not strike at the very heart of the Constitution? I argue in this Article that a right to know about the government is fundamental to the Constitution’s system of checks and balances. While past scholarship has largely grounded the right to know in the First Amendment, this Article advances a more foundational claim: the Framers’ unwavering commitment to popular sovereignty demands that the people have a right to know about their government. Recognizing a right to know as a constitutional imperative, rooted in the people’s sovereign authority, establishes a durable foundation for limited government—one that ensures that citizens can hold their leaders accountable and fully exercise their role in self-government.

Implementing a right to know about the government will present many challenges. Fortunately, we can draw guidance from the Supreme Court’s cases applying a public right of access to the courts, and we have decades of experience with open government statutes such as FOIA and the Sunshine Act. Building on this foundation, I lay out three core principles that should guide the development of a right to know about the government. First, a right to know should be limited in scope and extend only so far as is necessary to fulfill the needs of democratic self-government. Second, even when a right to know applies, it should yield when countervailing interests are sufficiently weighty. Third, the government must have leeway in designing access policies and procedures that account for the practical realities of providing public access.

You can download the article from SSRN.

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2024 Hargrove Colloquium: Media Law in the Age of Artificial Intelligence

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On April 16, 2024, the Center for Media Law and Policy will be hosting the 2024 Hargrove Colloquium.  The topic for this year’s colloquium is Media Law in the Age of Artificial Intelligence. Come hear from David McCraw, deputy general counsel at The New York Times Co. and author of the book Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts, as well as Ruth Okediji from Harvard Law School, who served as a member of the National Academies’ Board on Science, Technology and Policy Committee on the Impact of Copyright Policy on Innovation in the Digital Era.

Our distinguished panel of experts will examine efforts at the federal and state level to prevent potential abuse of AI and will delve into the impact of generative AI on critical areas of media law, offering insights and sparking thought-provoking discussion. Key areas of focus will include:

  • Copyright Law: Who owns the creative output generated by AI? What is the impact on copyright holders when their work is used in training AI systems? How will existing copyright frameworks adapt to accommodate generative AI?
  • Defamation and Tort Law: Who, if anyone, can be held liable for harmful or defamatory content that AI generates? What are the legal implications for users and platforms employing AI-powered algorithms to curate and publish information?
  • Political Communication: How is AI being used in political campaigns and advertising? What are the potential risks and safeguards around AI-powered misinformation and voter manipulation?
  • Journalism: How is AI transforming the news industry? What are the legal and ethical considerations surrounding AI-generated news? How can journalists leverage AI while upholding journalistic integrity?

The Colloquium will take place at 7:00 PM at the George Watts Hill Alumni Center at the University of North Carolina and is free and open to the public. Visitor parking is available in the Rams Head Parking Deck.

You can read more about the colloquium on our event page.

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The James R. Cleary Prize for Student Media Law and Policy Research in 2023

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 2023. 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.

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.  We define this subject matter broadly, including copyright, trademark, social media regulation, and First Amendment speech and press issues. All methodologies are welcome.

The deadline for submission is April 30, 2024.

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 2023 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 30, 2024.
  • 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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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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