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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UNC Community is Invited to First Amendment Day 2022!

First Amendment Day is back on campus September 21st! After two years of hosting the event in virtual format, the Center for Media Law and Policy is excited to invite the Carolina community to engage in person with renowned scholars, journalists, and litigators.

 

 

The faculty co-chairs of the UNC Center for Media Law and Policy—David Ardia, Reef C. Ivey II Excellence Fund Term Professor of Law at UNC School of Law, and Amanda Reid, Associate Professor at UNC Hussman School of Journalism and Media—have assembled a diverse group of speakers to discuss contemporary First Amendment issues like social media regulation, weaponization of First Amendment rhetoric, and speech in public schools (from cheerleaders to football coaches!). Other special events will include a banned book reading and a virtual First Amendment trivia contest with fun prizes and the return of the fan-favorite trivia category: First Amendment haikus.

The day will kick off at 10:30 a.m. in Carroll Hall with a student debate about timely ethical issues related to freedoms protected by the First Amendment. Then, the community is invited to the law school to hear legal scholars from UNC and the University of Helsinki discuss U.S. and European approaches to regulating social media platforms. Next, practicing journalists and lawyers will share guidance on how to stay within the bounds of the First Amendment (and out of court) when posting content online. Interdisciplinary speakers from the UNC Center for Information, Technology, and Public Life will then discuss the weaponization of the First Amendment rhetoric and how movements use the rhetoric of free speech as strategic social, political, and cultural tools. The day will culminate with a keynote address from University of Florida Professor Clay Calvert, the man who literally wrote the book on media law: Mass Media Law, 22nd Edition (with UNC Hussman graduates Dan Kozlowski ’06 (Ph.D.) and Derigan Silver ’09 (Ph.D.). Calvert will give a  thought-provoking speech titled “Free Speech and Public School Students — Lessons From a Cursing Cheerleader and South Park.”

After the day’s formal events conclude, Hussman Ph.D. student Evan Ringel will host a virtual First Amendment trivia event (Zoom link here or access at https://tinyurl.com/firstatrivia22) allowing community members to put their knowledge to the test through a series of First Amendment-related questions. Gift certificates from Chapel Hill bookstores Epilogue Books and Flyleaf Books are offered as prizes.

First Amendment Day has been a UNC tradition since 2009, and it is always observed during National Banned Books Week. The day is designed to celebrate the First Amendment and explore its role in the lives of UNC students—from social media use to political involvement. First Amendment day gives UNC community members the opportunity to discuss the public university’s special role as a marketplace of ideas and the need to be tolerant when others exercise their rights.

First Amendment Day is organized by the UNC Center for Media Law and Policy and is one of the highlights of the year for the UNC community. See the full schedule of events at firstamendmentday.unc.edu, and follow the festivities on Twitter via #UNCFree. 

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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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UNC Students Earn Top Paper Awards

The UNC Center for Media Law and Policy is thrilled to announce that two graduates from UNC’s dual-degree MA/JD program have been accepted to present their research at the 2022 Association for Education in Journalism and Mass Communication (AEJMC) annual conference. These two students also received special recognition: First Place and Second Place in the Top Faculty Paper category.

Evan RingelEvan Ringel, a 2021 MA/JD graduate and current Roy H. Park Doctoral Fellow, was awarded First Place, Top Faculty Paper for his article “Regulating Facial Recognition Technology & the First Amendment.” His article was co-authored with Dr. Amanda Reid. Ringel’s article is an extension of his master’s thesis work and examines the constitutional and practical difficulties in regulating facial recognition technology (FRT) at the state and local level. Ringel and Reid develop a regulatory hierarchy through a statutory analysis of each FRT-related proposed state law from the 2020 legislative session before examining how the First Amendment may limit certain types of FRT regulation.

Isabela Palmieri, a 2022 MA/JD graduate, was awarded Second Place, Top Faculty Paper for her article “Copyright & Shareability: A Contractual Solution to Embedding via Social Media.” Her article was co-authored with Dr. Amanda Reid. Palmieri’s article is an extension of her thesis work and it focuses on the tension between copyright law and an online content-sharing practice: embedding. Palmieri and Reid apply a multi-method approach to analyze the statutory interpretation of the 1976 Copyright Act and platforms’ Terms of Service and User Agreements. Ultimately, they crafted and propose model User Agreement terms that social media platforms can adopt to license embedding online and foster shareability.

In August, Ringel and Palmieri will present their papers at the 2022 AEJMC conference in Detroit, Michigan.

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2022 Cleary Writing Competition Winner Announced

Isabela Palmieri The UNC Center for Media Law and Policy is thrilled to announce the first place winner of the fourth annual James R. Cleary Prize for the best student published scholarly articles on media law and policy.  The award comes with a $1,000 cash prize.

This year’s winner is Isabela Palmieri, a dual-degree JD/MA student at the UNC School of Law and UNC Hussman School of Journalism and Media, for her article, “The Sound of Death and ‘Shroud of Secrecy’: The Ninth Circuit’s Inconsistent Application of the History and Logic Test in First Amendment Coalition of Arizona, Inc. v. Ryan,” which was published in Volume 99 of the North Carolina Law Review. Palmieri’s article examines the Ninth Circuit’s decision in First Amendment Coalition of Arizona, Inc. v. Ryan, which recognized a First Amendment right of access to the sounds of an execution but not to information related to such execution. In her article, Palmieri argued that the Ninth Circuit ignored its own relevant precedent and was inconsistent in its application of the applicable standard because it failed to apply the history and logic test to the claim of a right of public access to information relating to lethal injection drugs and executioners.

Isabela Palmieri is a recent dual-degree graduate of the University of North Carolina School of Law and the Hussman School of Journalism and Media where she earned her Juris Doctor degree and Master of Arts degree concurrently.

Palmieri has focused her scholarship on the First Amendment and intellectual property. Her master’s thesis explored the intersection between embedding content online and copyright law by applying a multi-method approach to analyze the law, platforms’ terms of service, and platforms’ technological affordances. Building upon her thesis, she co-authored an article with Dr. Amanda Reid, titled “Copyright & Shareability: A Contractual Solution to Embedding via Social Media,” which was awarded Second Place, Top Faculty Paper by the Association for Education in Journalism and Mass Communication (AEJMC).

Palmieri has previously worked for the Foundation of Individual Rights in Education (FIRE), where she had the opportunity to defend and sustain the individual rights of students and faculty members in higher education. Palmieri will sit for the Pennsylvania bar in July. She will join Troutman Pepper Hamilton Sanders, LLP, at their Philadelphia office in the fall of 2022 as an entry-level associate.

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 our winner!

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