Tag Archives | Scholarship

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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The James R. Cleary Prize for Student Media Law and Policy Research in 2020

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 2020. 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, Elias Wright, from Fordham University School of Law; Sarah Koslov, from Georgetown Law; and David Fischer, from Columbia Law School, 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, 2021.

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 2020 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, 2021.
  • 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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Addressing the Decline of Local News, Rise of Platforms, and Spread of Mis- and Disinformation Online: A Summary of Current Research and Policy Proposals

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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Cleary Competition Winners Announced

Elias Wright

The UNC Center for Media Law and Policy is thrilled to announce the winners of the second annual James R. Cleary Prize for students who wrote the best published scholarly articles on media law and policy related topics in 2019.

This year’s first place winner is Elias Wright, a 2020 graduate of Fordham University School of Law, for his article, “The Future of Facial Recognition Is Not Fully Known: Developing Privacy and Security Regulatory Mechanisms for Facial Recognition in the Retail Sector,” which was published in the Fordham Intellectual Property, Media and Entertainment Law Journal. The second place winner is Sarah Koslov, a 2020 graduate of Georgetown Law School. Her article, “Incitement and the Geopolitical Influence of Facebook Content Moderation,” was published in the Georgetown Law Technology Review. The third place winner is David A. Fischer, a 2020 graduate of Columbia Law School, for his article, “Dron’t Stop Me Now: Prioritizing Drone Journalism in Commercial Drone Regulation,” which was published in the Columbia Journal of Law and the Arts. Wright will receive $1000;  Koslov will receive $500; and Fischer will receive $250.

Elias Wright is currently working as a law clerk at Katten Muchin Rosenman LLP while applying for admission to the New York Bar. His research focuses on the intersection of communications technology, law, and culture, and he is interested in how legal institutions negotiate and are transformed by sociotechnical processes.

While at Fordham, Wright served as a Project Fellow for the Center on Law and Information Policy and studied Information Law with Professor Olivier Sylvain, who was his advisor on the article. Wright was a member of the Fordham Law Review and served as a judicial intern for United States Magistrate Judge Leda Dunn Wettre of the District of New Jersey. He grew up in Montclair, New Jersey, and completed his undergraduate degree in Art History and Religion at Oberlin College in 2014.

Sarah Koslov

At Georgetown Law, Sarah Koslov was a member of the inaugural cohort of the Technology Law Scholars program. She served as the Senior Solicitations Editor for the Georgetown Law Technology Review and was a Public Interest Fellow achieving Special Pro Bono Pledge Recognition. Koslov’s interest in public policy led her to internships with the Antitrust Division of the U.S. Department of Justice, Senate Committee on Finance, and California Office of the Attorney General. She was also a Research Assistant for the Institute for Technology Law & Policy, where she focused on algorithmic fairness and disability rights.

Koslov graduated magna cum laude with a bachelor’s degree from the University of South Carolina in 2014. Prior to law school, she worked as a policy analyst for a research center in Washington, D.C., focusing on state Medicaid programs and public health insurance policy.

David A. Fischer

David A. Fischer was a Harlan Fiske Stone Scholar and the Executive Notes Editor of Volume 43 of the Columbia Journal of Law & the Arts.  While attending Columbia Law School, Fischer served as a research assistant for Professor Suzanne B. Goldberg and volunteered to teach Constitutional Law to high school students as a part of Columbia’s High School Law Institute.

During law school, Fischer was a summer associate with Latham & Watkins in New York, interned for the Knight First Amendment Institute at Columbia University, for the U.S. Attorney’s Office in the Eastern District of New York in the Criminal Division’s National Security and Cybercrime Section, and for the Hon. Eric N. Vitaliano of the U.S. District Court for the Eastern District of New York.

Prior to attending law school, Fischer worked in marketing for Viacom Media Networks. He attended Cornell University, where he graduated cum laude with a bachelor’s degree in English. He resides in New York City.

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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