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Full-Text Articles in Law
Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Barnett Lidsky
Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
False factual information has no First Amendment value, and yet the United States Supreme Court has accorded lies a measure of First Amendment protection. The First Amendment imposes something in the nature of a presumption against government interference in public discourse. This presumption is rooted in suspicion of the State's ability to distinguish facts from falsehoods as well as its motives for doing so. However, the presumption against regulation of false speech is not absolute. It can be overcome when verifiably false speech poses a direct threat of harm to individual interests. Unlike other countries, the United States has never …
Government Sponsored Social Media And Public Forum Doctrine Under The First Amendment: Perils And Pitfalls, Lyrissa Barnett Lidsky
Government Sponsored Social Media And Public Forum Doctrine Under The First Amendment: Perils And Pitfalls, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
The goal of this article is to provide guidance to lawyers trying to navigate the morass that is the U.S. Supreme Court’s public forum jurisprudence in order to advise government actors wishing to establish social media forums.
Prying, Spying, And Lying: Intrusive Newsgathering And What The Law Should Do About It, Lyrissa Barnett Lidsky
Prying, Spying, And Lying: Intrusive Newsgathering And What The Law Should Do About It, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
The media's use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaninful privacy protection. After surveying the economic, philosophical, and practical obstacles to reform, this Article proposes to rejuvenate the tort of intrusion to tip the balance between privacy and the press back in privacy's direction. Working within the framework …
Incendiary Speech And Social Media, Lyrissa Barnett Lidsky
Incendiary Speech And Social Media, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …
Brandenburg And The United States' War On Incitement Abroad: Defending A Double Standard, Lyrissa Barnett Lidsky
Brandenburg And The United States' War On Incitement Abroad: Defending A Double Standard, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
While it is perfectly legitimate for the United States to attempt to persuade foreign citizens and media not to engage in advocacy of violent acts, the administration's rhetoric suggests that the United States expects foreign governments to take action against speech that would be protected by the First Amendment in the United States. What explains this apparent hypocrisy? Is this simply another example of the United States touting democracy at home while supporting despotism abroad? Or is the Brandenburg incitement standard so socially and culturally contingent that it is not appropriate for export, at least to the Arab Middle East? …
Public Forum 2.0, Lyrissa Lidsky
Public Forum 2.0, Lyrissa Lidsky
Lyrissa Barnett Lidsky
Social media have the potential to revolutionize discourse between American citizens and their governments. At present, however, the U.S. Supreme Court's public forum jurisprudence frustrates rather than fosters that potential. This article navigates the notoriously complex body of public forum doctrine to provide guidance for those who must develop or administer government-sponsored social media, or adjudicate First Amendment questions concerning them. Next, the article marks out a new path for public forum doctrine that will allow it to realize the potential of Web 2.0 technologies to enhance democratic discourse between the governors and the governed. Along the way, this article …