Tag Archives | Research

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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Addressing the Decline of Local News, Rise of Platforms, and Spread of Mis- and Disinformation Online: A Summary of Current Research and Policy Proposals

By on January 15, 2021 in Center for Media Law and Policy, Internet, Journalism

I’m thrilled to announce that the Center for Media Law and Policy recently published a research paper titled “Addressing the Decline of Local News, Rise of Platforms, and Spread of Mis- and Disinformation Online: A Summary of Current Research and Policy Proposals.”

The whitepaper grew out of a workshop the Center hosted in November 2019 in conjunction with the UNC Center for Innovation and Sustainability in Local Media and UNC Center for Information, Technology, and Public Life (CITAP), which brought together experts on the decline of local news, the rise of online platforms, and the spread of mis- and disinformation. The workshop was part of a two-day, interdisciplinary conference titled “Fostering an Informed Society: The Role of the First Amendment in Strengthening Local News and Democracy.” The conference began with a symposium at the UNC School of Law hosted by the First Amendment Law Review that examined the role of the First Amendment in creating an informed society and explored whether the Constitution places affirmative obligations on the government to ensure that citizens are informed.

The workshop, which is the subject of this whitepaper, took place on the second day at the UNC Hussman School of Journalism and Media and was co-led by Philip Napoli, James R. Shepley Professor of Public Policy at the Sanford School of Public Policy at Duke University. A full list of workshop attendees is included in Appendix A.

The whitepaper is organized in the same way we structured the workshop, starting with an overview of the decline of local news followed by a discussion of the rise of platforms and the spread of mis- and disinformation online. We then examine a number of regulatory and policy responses to the problems identified in the earlier sections and conclude by offering some suggestions for next steps. In Appendix B we provide a list of recent research and resources available for those who wish to engage in more study of these important issues.

Here is the abstract:

Technological and economic assaults have destroyed the for-profit business model that sustained local journalism in this country for two centuries. While the advertising-based model for local news has been under threat for many years, the COVID-19 pandemic and recession have created what some describe as an “extinction level” threat for local newspapers and other struggling news outlets. More than one-fourth of the country’s newspapers have disappeared, leaving residents in thousands of communities living in vast news deserts.

As local news sources decline, a growing proportion of Americans are getting their news and other information from social media. This raises serious concerns, including the spread of misinformation and the use of platform infrastructure to engage in disinformation campaigns. Platforms wield significant advantages over local news sources in the current information environment: the dominant platforms possess proprietary, detailed caches of user data, which the platforms use to force advertisers, users, and news outlets into asymmetrical relationships. In the vacuum left by the disappearance of local news sources, users are increasingly reliant on information sources that are incomplete, and may be misleading or deceptive.

This whitepaper examines current research related to the decline of local news, the rise of platforms, and the spread of mis- and disinformation and explores potential regulatory and policy responses to these issues. Some proposals focus on increasing the supply of – and demand for – local news, including increased public education and expanded support for journalists and local news organizations. Other proposals focus on market-based reforms that address the growing power disparities between news producers and platform operators as well as between platforms and their users.

Solutions to the difficult problems we face will require a multifaceted, multi-disciplinary approach. No one lever within the market, law, or society will deliver a magic bullet. Instead, experts and policymakers will need to pull at multiple levers using a new vocabulary to talk across the different disciplines – a set of new propositions that recognize the legal, social, journalistic, and economic principles at stake, particularly the harm done to democracy if the status quo continues.

You can download the full paper here or from SSRN.

The Hearst Foundations provided funding for the workshop, and funding for the preparation of the whitepaper was provided by the Hearst Foundations and John S. and James L. Knight Foundation.

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New Resources: Affiliate Scholars Research Repository & Social Sciences Resources Page

By on February 13, 2018 in Center for Media Law and Policy

We are fortunate to have a number of great scholars affiliated with the Center of Media Law and Policy that hail from the UNC School of Law, the UNC School of Media and Journalism, and the UNC School of Information and Library Science. We are pleased to announce that we have made their work more accessible to the public through a helpful addition on our website!

The updated Media Law Resources page has links to a repository of publications penned by our affiliated faculty. The repository is broken down based on topic and provides links to the each article’s full-text version or abstract. Most articles are available for download.

Works on the following media law topics have been included:

In addition, we have compiled a list of social science resources for those interested in the intersection of law and policy. This list provides links to online libraries and other resource sites that offer publications, reports, or other resources for social science research.

We hope the repository and resource list assists researchers and students alike as they conduct studies on media law and policy. If you have any questions about these new resources, please contact our research fellow, Rachael Jones, at rachael_jones@unc.edu.

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Privacy and Court Records: Online Access and the Loss of Practical Obscurity

By on January 30, 2015 in First Amendment, Internet, Privacy, Transparency

CourtRecrodsI’m excited to announce that Professor Anne Klinefelter and I received an award from the Berkeley Center for Law & Technology and Microsoft Corp. to study the extent of private and other sensitive information in court records.  The $43,000 award will go to the Center for Media Law and Policy and the Kathrine R. Everett Law Library at the UNC School of Law to support a team of researchers who will sample and code several hundred briefs and other filings from the North Carolina Supreme Court.

The United States has a long history of providing public trials and open access to court records, both of which are essential if the public is to have faith in the fairness of our courts and justice system.  Over the past two decades, courts across the country have been moving quickly to digitize their records and make them available online. Some courts are doing this work themselves, while others are relying on third parties, such as libraries and other archives, to make public access possible. All, however, are dealing with one central and unavoidable issue: privacy.

Court records contain a number of types of information that could be characterized as private, ranging from social security numbers to the names of minor children involved in sexual abuse. Little work has been done, however, to study how often this information appears in judicial records and the context in which it appears. The lack of empirical data hamstrings court personnel and other archivists who are attempting to balance privacy interests with the public’s right of access, as well as scholars looking to adapt privacy law and First Amendment doctrines to deal with the flood of public records going online.

This research will provide a first-of-its-kind empirical study of the frequency of sensitive and private information in court records.  Although we are hopeful that our study will be valuable to courts and other archivists, we do not plan to recommend that any specific information in these records be redacted. Instead, our aim is to catalog the kinds of sensitive information that are in these records and to examine the context in which the various types of private information appear.  This will help policymakers and judges better evaluate the potential harm to privacy interests that might arise from the disclosure of private information in court briefs and related records. An examination of term frequency and any discoveries that certain terms are likely to appear when others also appear, may also inform some normative arguments about the “harmfulness” of online access to court records.

This study will also add much needed detail to the term “private information” as it applies in the context of judicial records. Based on a review of the laws that apply to court records as well as other privacy laws and scholarship, we have identified more than 139 types of sensitive or private information that may exist in these records. It is very unlikely that all of these information types appear with equal frequency. Frequency of appearance may be correlated with case type (e.g., civil vs. criminal), document type (e.g., brief vs. appendix) or time period. This study will allow us to assess, for example, whether criminal cases tend to raise different privacy concerns from civil cases.

Our project was one of six proposals to receive awards from Berkeley and Microsoft. You can read the UNC School of Law’s announcement of the award here.

We will present the results of this research at the 2015 Berkeley Technology Law Journal Spring Symposium, “The Privacy, Security, Human Rights and Civil Rights Implications of Releasing Government Datasets,” on April 17.  Look for more posts about our study over the next few months.

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