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Articles 1 - 17 of 17
Full-Text Articles in Law
United States Media Law Update, Lyrissa Barnett Lidsky, Rachael Jones
United States Media Law Update, Lyrissa Barnett Lidsky, Rachael Jones
Lyrissa Barnett Lidsky
In June 2015 the United States Supreme Court completed what was hailed as its most ‘liberal term of the ages’, issuing major decisions on controversial issues, such as same-sex marriage, affirmative action and the Affordable Care Act. The Court’s free press jurisprudence, however, remained largely unchanged after its last term. The Court did not decide any significant press cases. Instead, the Court sidestepped the opportunity to resolve important questions about the constitutional limits on the prosecution of threats made via social media in one notable case, and set a new, more speech-protective standard for determining when a law is content-based …
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 …
Public Forum 2.0, Lyrissa Barnett Lidsky
Public Forum 2.0, Lyrissa Barnett 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 …
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 …
Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky
Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
This Article explores common formalist themes, asking not whether formalism's aspirations are attainable but why formalists still struggle to attain them in the face of sustained attacks by anti-formalists. After briefly sketching the tenets of formalism in Section I, this Article turns to an examination of Summers' "post-realist formalism." Finally, this Article probes the philosophical and psychological attractions of formalism and suggests that formalism's promise of stability and order may be essential to the effective functioning of the legal system, even if this promise can never be realized.
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 …
Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Barnett Lidsky, Tera Jckowski Peterson
Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Barnett Lidsky, Tera Jckowski Peterson
Lyrissa Barnett Lidsky
In 2006, the Florida Supreme Court added a "licensing" scheme for attorney advertising on television or radio to its existing panoply of attorney advertising regulations. The new rule imposes a prior restraint on all radio and television ads by Florida attorneys: every ad must run the gauntlet of the Bar's censors prior to airing, and the ad may not air unless its content meets with the approval of the censors. Not content with its foray into regulating the broadcast medium, the Florida Supreme Court is now poised to add a rule that will regulate attorney speech on the Internet much …
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 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky
Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
Like most of us, public colleges and universities increasingly are communicating via Facebook, Second Life, YouTube, Twitter and other social media. Unlike most of us, public colleges and universities are government actors, and their social media communications present complex administrative and First Amendment challenges. The authors of this article — one the dean of a major public university law school responsible for directing its social media strategies, the other a scholar of social media and the First Amendment — have combined their expertise to help public university officials address these challenges. To that end, this article first examines current and …
How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia
How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia
Lyrissa Barnett Lidsky
This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …
Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, James Coleman, Angela Davis, Michael Gerhardt, K. Johnson, Lyrissa Lidsky, Howard Wasserman
Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, James Coleman, Angela Davis, Michael Gerhardt, K. Johnson, Lyrissa Lidsky, Howard Wasserman
Lyrissa Barnett Lidsky
This panel took place at the 2008 Annual Meeting of the Southeastern Association of Law Schools (SEALS) in July 2008 in West Palm Beach, Florida. The transcript has been edited for grammar, punctuation and writing style, as well as for limited content changes.
Intrusion And The Investigative Reporter, Lyrissa Barnett Lidsky
Intrusion And The Investigative Reporter, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
In an award-winning series of Houston Chronicle articles, reporter Nancy Stancill uncovered shocking conditions in Texas nursing homes. 7 However, reforms were not implemented until 20/20, following Stancill's lead, conducted a three-month, undercover investigation of the treatment of elderly residents at Texas state and private nursing home facilities. By employing subterfuge to gather news, the 20/20 reporters enhanced the immediacy and credibility of the resulting story. As one journalist argued, "[Jiust describing the conditions wouldn't have cut it. They had to be seen." Using the 20/20 case as a paradigm, this Note argues that, in order to distinguish protected newsgathering …
The Reasonable Woman And The "Warrior Code", Lyrissa Barnett Lidsky
The Reasonable Woman And The "Warrior Code", Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
In the provocative book A Law of Her Own: The Reasonable Woman as a Measure of Man, Caroline Forell and Donna Matthews argue that existing law systematically undervalues women's experiences of sexual harassment and sexual violence. In essence, the authors contend that law is a "warrior code" that is unduly forgiving of sexual aggression and violence, and they support this contention by showing how "male-centered values" permeate the law of sexual harassment, stalking, domestic violence, and rape. This critique alone would make this work worthy of serious consideration by anyone concerned with the law's treatment of women.
Silencing John Doe: Defamation & Discourse In Cyberspace, Lyrissa Barnett Lidsky
Silencing John Doe: Defamation & Discourse In Cyberspace, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons-some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits …
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 …
Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Barnett Lidsky
Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called “core” speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the “marketplace of ideas” …