Archive | First Amendment

A UNC Student’s Summer Experience at the Foundation for Individual Rights in Education

By on April 26, 2022 in Center for Media Law and Policy, First Amendment

Each summer, the Center for Media Law and Policy provides financial support through its summer grants program to UNC law and graduate students taking unpaid or low-paying jobs in the fields of media law or media policy. The comments below are from Isabela Palmieri, a dual degree JD/MA student at the UNC School of Law and UNC Hussman School of Journalism and Media, who interned at the Foundation for Individual Rights in Education (FIRE) in summer 2019 and received one of the Center’s grants:

In the summer of 2019, I had the opportunity to work for the Foundation for Individual Rights in Education. FIRE’s mission is to defend and sustain the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience—the essential qualities of liberty. FIRE educates students, faculty, alumni, trustees, and the public about the threats to these rights on our campuses, and provides the means to preserve them.  It was founded in 1999 by University of Pennsylvania professor Alan Charles Kors and Boston civil liberties attorney Harvey Silverglate.

While there, I researched and drafted memoranda on legal issues regarding free speech and due process in higher education. I also aided the Individual Rights Defense Program (IRDP) team in writing and editing legal correspondence to individual students, professors, and campus groups whose fundamental civil liberties had been violated. As one of my biggest projects, I drafted a model policy for universities that provided a constitutional and viewpoint-neutral process for the allocation of student fees.

The Center’s grant allowed me to spend the summer in Philadelphia and have an enriching experience at FIRE protecting students’ free speech rights.

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

By on August 5, 2021 in Center for Media Law and Policy, First Amendment, Internet

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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Pedro X. Molina Speaking on The Art of Resistance

By on October 8, 2019 in Center for Media Law and Policy, First Amendment

In the midst of turbulent political times in the United States, it’s easy to forget that pressures on press freedom are everywhere these days. Tonight’s talk by Pedro X. Molina, which was co-sponsored by our Center, was a stark reminder of that.

In 2017 Pedro X. Molina was a prolific participant in the #FreeNseRamon campaign demanding freedom for fellow illustrator and political cartoonist, Ramón Nsé Esono Ebalé, who was imprisoned for his work criticizing his country’s government, Equatorial Guinea.

Pedro X. Molina, also known as ‘PxMolinA,’ is an internationally acclaimed political cartoonist, illustrator and journalist from Nicaragua. In December 2018, when the offices of news media outlet Confidencial were taken over by government forces and during a national crackdown on journalists and government critics, Molina fled his country. He and his colleagues continue to publish daily in Confidencial.com.ni, either from exile or from other locations in Nicaragua. In summer 2019, Molina won the prestigious Maria Moors Cabot Award in international journalism from Columbia’s School of Journalism. In 2018, Molina won the Courage in Editorial Cartooning Award from Cartoonists Rights Network International, as well as the Excellence in Journalism award from the Inter American Press Association.

Esono Ebalé’s work and Molina’s contributions to the #FreeNseRamon campaign are both featured in  ‘The Art of Resistance’ exhibition on display throughout the FedEx Global Education Center until December 13, 2019. Come hear/see Molina share his work in Nicaragua and his efforts to support freedom of expression everywhere.

Molina reminded those of us who attended his talk that fanaticism is rampant across the globe, and that citizens must advocate for human decency over ideology.

This event was sponsored by the Humanities for the Public Good Initiative, Institute for the Arts and Humanities, Global Relations, the UNC Center for Media Law and Policy, Institute for the Study of the Americas, Department of Romance Studies and UNC Global.

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Immerse Yourself in IP and Media Law at the UNC Festival of Legal Learning

By on February 6, 2019 in Copyright, Defamation, FCC, First Amendment, Internet, Privacy

One of the biggest annual events at the UNC School of Law is the Festival of Legal Learning. This two-day convocation of legal geekery comprises 113 different continuing legal education (CLE) sessions and 152 speakers. For the past few years, the Center for Media Law and Policy has helped with the selection and coordination of sessions that cover Media Law and Intellectual Property subjects.

This year’s festival, which takes place on Feb. 8-9, will mark the 29th year of the program, and I feel confident in saying that we have more Media Law and IP sessions than we’ve ever had in the past. By my count, there are 16 sessions this year that touch on these topics, ranging from cybersecurity to recent developments at the Federal Communications Commission. And the list of speakers is a who’s who of the top media, entertainment, and IP lawyers in the state. You can see a list of these folks and descriptions of their sessions on our festival event page.

Here are just a few of the sessions available at the festival this year:

Friday, Feb. 8

  • 8:00 AM  –  9:00 AM + Hot Topics in Intellectual Property: Lessons Learned and Cases to Watch 
  • 8:00 AM  –  9:00 AM + The GDPR: The Impact of EU Privacy Law on US Organizations
  • 9:10 AM  –  10:10 AM + Navigating a Watershed Privacy Law: California Consumer Privacy Act Forecast for 2019
  • 9:10 AM  –  10:10 AM + Revenge Porn – NC’s New Law and Resources to Assist Survivors
  • 10:20 AM  –  11:20 AM + Federal Privacy Legislation: Do We Need It? If So, What Should It Look Like?
  • 10:20 AM  –  11:20 AM + Municipal Broadband and the First Amendment
  • 11:30 AM  –  12:30 PM + Defining Privacy Harm for Standing in Federal Courts 
  • 2:40 PM  –  3:40 PM + New Era in Music Licensing: The Music Modernization Act
  • 3:50 PM  –  4:50 PM + Cutting-Edge Topics in Cybersecurity Law 
  • 3:50 PM  –  4:50 PM + Entertainment Law Hot Topics and Litigation Round-Up 
  • 5:00 PM  –  6:00 PM + Open Source 101
  • 5:00 PM  –  6:00 PM + What Every Lawyer Should Know About eSports

Saturday, Feb. 9

  • 8:00 AM  –  9:00 AM + Peek into North Carolina Public Records
  • 8:00 AM  –  9:00 AM + When #Metoo Meets Defamation Law
  • 10:20 AM  –  11:20 AM + Recent Developments at the Federal Communications Commission

As an added bonus, if you stick around until the last session on Saturday (11:30 AM  –  12:30 PM) you will get to see Mary-Rose Papandrea and me do a session on “The First Amendment and Social Media: What (If Any) Rules Apply?” We will be taking on some important questions, including: What role does big tech have in regulating our national conversation? What is the impact of digital censorship? And, in all of this, does the First Amendment have any bearing on social media platforms? This session will explore the intersection of free speech values, the First Amendment, and our growing reliance on major social media companies that wield an increasing amount of censorial power.

The Festival will take place at the William & Ida Friday Continuing Education Center at UNC-Chapel Hill from 8:00 a.m.—6:00 p.m. on Friday, Feb. 8, and 8:00 a.m.—12:30 p.m. on Saturday, Feb. 9. You can find a full list of available sessions in the program guide.

To register for the Festival, please visit their registration page.

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Redeeming Privacy Law, “Bad Incentives” of Social Media Companies, and the Stored Communications Act: Emerging Scholarship in Media Law

By on November 25, 2018 in First Amendment

This blog post is part of a continuing series examining some of the latest academic scholarship in media law and related fields! Stay tuned for future updates.

In “Body Cameras and the Path to Redeeming Privacy Law,” 96 N.C. L. Rev. 695 (2018), Woodrow Hartzog at Northeastern University School of Law argues that the intense debate over the  implications of police body cameras is a golden opportunity to “redeem” privacy law. Hartzog suggests a number of opportunities for lawmakers, scholars, and judges to alter the traditional approaches to the doctrine of privacy, including changing the “reasonable expectation of privacy” standard and creating laws relating to body camera design. From his abstract:

From a privacy perspective, the movement towards police body cameras seems ominous. The prospect of a surveillance device capturing massive amounts of data concerning people’s most vulnerable moments is daunting. These concerns are compounded by the fact that there is little consensus and few hard rules on how and for whom these systems should be built and used. But in many ways, this blank slate is a gift. Law and policy makers are not burdened by the weight of rules and technologies created in a different time for a different purpose. These surveillance and data technologies will be modern. Many of the risks posed by the systems will be novel as well. Our privacy rules must keep up.

In this Article, I argue that police body cameras are an opportunity to chart a path past privacy law’s most vexing missteps and omissions. Specifically, lawmakers should avoid falling back on the “reasonable expectation of privacy” standard. Instead, they should use body cameras to embrace more nuanced theories of privacy, such as trust and obscurity. Trust-based relationships can be used to counter the harshness of the third party doctrine. The value of obscurity reveals the misguided nature of the argument that there is “no privacy in public.”

Law and policy makers can also better protect privacy by creating rules that address how body cameras and data technologies are designed in addition to how they are used. Since body-camera systems implicate every stage of the modern data life cycle from collection to disclosure, they can serve as a useful model across industry and government. But if law and policy makers hope to show how privacy rules can be improved, they must act quickly. The path to privacy law’s redemption will stay clear for only so long.

Social media companies are ultimately for-profit corporations; regulations that may seem commonsense for First Amendment protections can often end up harming these companies’ bottom line.  Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, proposes financial penalties to counteract the “bad incentives” of social media companies in “Fixing Social Media’s Grand Bargain.” Yale Public Law Research Paper 652 (2018). From the abstract:

To regulate social media in the twenty-first century, we should focus on its political economy: the nature of digital capitalism and how we pay for the digital public sphere we have. Our digital public sphere is premised on a grand bargain: free communications services in exchange for pervasive data collection and analysis. This allows companies to sell access to end users to the companies’ advertisers and other businesses.

The political economy of digital capitalism creates perverse incentives for social media companies. It encourages companies to surveil, addict, and manipulate their end users and to strike deals with third parties who will further manipulate them.

Treating social media companies as public forums or public utilities is not the proper cure. It may actually make things worse. Even so, social media companies, whether they like it or not, have public obligations. They play important roles in organizing and curating public discussion and they have moral and professional responsibilities both to their end users and to the general public.

A reinvigorated competition law is one important way of dealing with the problems of social media. But this essay also emphasizes a second approach: new fiduciary obligations that protect end-user privacy and counteract social media companies’ bad incentives.

Mitchol Dunham at the University of Denver Law School suggests the need for an updated Stored Communications Act to accommodate “current and emerging technology” in “Arbitrary and Outdated: Reforming the Stored Communications Act.” 83 Cybersecurity, Data Privacy & eDiscovery Law and Policy eJournal (2018). From the article’s abstract:

In 2018, the Supreme Court of the United States had the opportunity to revisit the Stored Communications Act and decide the question of whether the Act could be applied extraterritorially. Instead of answering the question directly, the Court left the question for Congress to decide. Congress took this opportunity and passed the CLOUD Act, legislation that acts more as a temporary fix instead of addressing the real issue: the Stored Communications Act no longer properly accommodates modern technology. This article begins with a reading of the Stored Communications Act, describing the limits of law enforcement’s ability to obtain a warrant, including the seemingly arbitrary decisions that Congress made with respect to certain kinds of data. The article then analyzes the issue that Congress addressed through the CLOUD Act and how the paradigm shifted for extraterritorial data before turning to a different example of where the Stored Communications Act falls short: distributed storage technology. The article provides a detailed examination of how this technology works and why it does not fit within the CLOUD Act paradigm. Finally, the article concludes that the Stored Communications Act cannot be fixed through patchwork legislation; instead, the entire Act needs to be reformed to accommodate current and emerging technology. The article recognizes that although there are two diametrically opposed approaches that Congress can take, a privacy-first approach is preferable and better supported both historically and when examining society’s utilization of the internet.

Come back soon for another update!

Research graphic by Nick Youngson licensed under CC BY-SA 3.0 from Alpha Stock Images.

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