Law Commons^™

Incitement And Social Media-Algorithmic Speech: Redefining Brandenburg For A Different Kind Of Speech, Anna Rhoads

William & Mary Law Review

Assuming that these scholars are correct and that social media algorithms’ decisions qualify as speech to which the First Amendment applies (social media-algorithmic speech), this Note proposes a legal solution to the increasing problem of violence stemming from social media. This Note asserts that the incitement standard for social media-algorithmic speech should be less stringent because the Brandenburg standard does not apply well to new media, social media-algorithmic speech is much more likely than other speech to actually produce lawless action, and the traditional First Amendment justifications do not apply to social media algorithms’ speech. Therefore, the Supreme Court should …

Countering Personalized Speech, Leon G. Ho

Northwestern Journal of Technology and Intellectual Property

Social media platforms use personalization algorithms to make content curation decisions for each end user. These personalized recommendation decisions are essentially speech conveying a platform's predictions on content relevance for each end user. Yet, they are causing some of the worst problems on the internet. First, they facilitate the precipitous spread of mis- and disinformation by exploiting the very same biases and insecurities that drive end user engagement with such content. Second, they exacerbate social media addiction and related mental health harms by leveraging users' affective needs to drive engagement to greater and greater heights. Lastly, they erode end user …

The First Amendment And The Regulation Of Speech Intermediaries, Shaun B. Spencer

Marquette Law Review

Calls to regulate social media platforms abound on both sides of the political spectrum. Some want to prevent platforms from deplatforming users or moderating content, while others want them to deplatform more users and moderate more content. Both types of regulation will draw First Amendment challenges. As Justices Thomas and Alito have observed, applying settled First Amendment doctrine to emerging regulation of social media platforms presents significant analytical challenges.

The President’S Remedy–What The Hydroxychloroquine Story Teaches Us About The Need To Limit Off-Lable Prescribing Powers, Jennifer Bard

Catholic University Law Review

When the history of the first year of the United States Government’s response to the COVID-19 virus is written, there is likely to be mention of the still unexplained vehemence with which then president Donald J. Trump made use of his access to social media to promote seldom used anti-malaria drug, hydroxychloroquine, for both the prevention and treatment of COVID-19 despite the active growing opposition of most of the world’s scientists, including his own government scientists. While the use of drugs developed and approved by the FDA for different purposes to combat new diseases, off-label prescribing, is legal in the …

Outside Tinker’S Reach: An Examination Of Mahanoy Area School District V. B. L. And Its Implications, Michelle Hunt

Northwestern Journal of Law & Social Policy

In the 1969 landmark case Tinker v. Des Moines Independent Community School District, the Supreme Court reassured students that they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Ever since then, the exact scope of students’ free speech rights has been unclear, but the high court has used Tinker’s substantial disruption test to clarify its scope in successive legal challenges. In 2017, B. L., a Mahanoy Area School District student, was suspended from her cheerleading team after using vulgar language off-campus that made its way back to her coaches. She …

Tinkering With The Schoolhouse Gate: The Future Of Student Speech After Mahanoy Area School District V. B.L., Victoria R. Bonds

Loyola of Los Angeles Entertainment Law Review

When the Supreme Court last created a rule about students’ First Amendment rights, MySpace was the most popular social media platform. Students’ use of social media and technology has radically changed since then, and it is time the First Amendment case law reflects that. With the transition to online learning after the COVID-19 pandemic and overall increased reliance on technology, students need clear answers about when school officials can punish them for their social media posts.

The Supreme Court had a chance to clarify First Amendment student speech law this year in Mahanoy Area School District v. B.L., but …