Law Commons^™

Anti-Antisemitism Now, Lili Levi

University of Miami Law Review

On May 25, 2023, the Biden Administration released The U.S. National Strategy to Counter Antisemitism—America’s first national strategy of this kind. In early November 2023, the White House announced the establishment of the first-ever U.S. National Strategy to Counter Islamophobia. These historic commitments respond to increases in identity-based bias incidents and expression against Jews and Muslims. Antisemitic incidents, which were already rising even before the pandemic, increased by almost 400% since the start of the Israel-Hamas war. The war also triggered a sharp upturn in Islamophobic incidents in the U.S., including the shooting of three college students and …

The Kids Are Not Alright: A Look Into The Absence Of Laws Protecting Children In Social Media, Libby Morehouse

Loyola of Los Angeles Entertainment Law Review

No abstract provided.

The Unregulated Digital Playground: Why Kids Need Right Of Publicity Protections From Their Parents, Sophie Polo

Journal of Intellectual Property Law

As social media continues to become more prevalent in society, profitability on social media platforms continues to increase. Parents have discovered ways to profit online by using their children in content to gather views, therefore taking advantage of their children's right of publicity. While some parents use this profit to raise their children, there is no guarantee that children benefit from their parent's use of their name, image, or likeness. Since social media is still a relatively new space, there are not many protections for the interests of children on social media compared to other areas such as child acting. …

Killing Two Birds With One Stone: Remedying Malicious Social Bot Behavior Via Section 230 Reform, Jackson Smith

William & Mary Business Law Review

As “interactive computer services” (social media sites) expanded over the past decade, so too did the prevalence of “social bots,” software programs that mimic human behavior online. The capacity social bots have to exponentially amplify often-harmful content has led to calls for greater accountability from social media companies in the way they manage bot presence on their sites. In response, many social media companies and private researchers have developed bot-detection methodologies to better govern social bot activities. At the same time, the prevalence of harmful content on social media sites has led to calls to reform Section 230 of the …

Likes, Camera, Action: Safeguarding "Child Influencers" Through Expanded Coogan Protections And Increased Regulation Of Social Media, Dana D. Joss

William & Mary Business Law Review

As a result of the increased popularity of influencer marketing, various “child influencers” have risen to stardom on popular social media platforms such as YouTube, TikTok, and Instagram. To date, these children have no protections under the law to safeguard them from the dangers of the influencer industry. Namely, there are no safeguards from financial exploitation by parents and guardians; children hold no guarantee that they can retain their earnings from social media. Further, there are no regulations in place regarding the number of hours child influencers may work and such children sometimes maintain little control over the extent of …

Anything You Say (Or Like, Repost, And Quote) Can Be Used Against You, Alexandra Heyl

Catholic University Law Review

Social media allows users to exchange thoughts and ideas without saying a single word. Whether a user “likes” “reposts” or “quotes” third-party content, a user publicly interacts with content authored by someone else with the click of a button. Is this online activity more akin to a user making a statement, adopting a third-party’s statement, or not making a statement at all? Does it matter? Only certain statements can be used against you at trial. Federal Rule of Evidence (“Federal Rule”) 802(a) provides that “hearsay” is an out-of-court statement offered for the truth of the matter asserted. According to Federal …

Virtual Justice: Criminalizing Avatar Sexual Assault In Metaverse Spaces, Olivia Bellini

Mitchell Hamline Law Review

No abstract provided.

Social Media, The Modern Public Forum: The State Action Doctrine And Resurrection Of Marsh, Erika L. Andersen

Mitchell Hamline Law Review

No abstract provided.

Machine Manipulation: Why An Ai Editor Does Not Serve First Amendment Values, Alec Peters

University of Colorado Law Review

The past few years have seen increasing calls for regulation of large social media platforms, and several states have recently enacted laws regulating their content moderation, promotion, and recommendation practices. But if those platforms are exercising editorial discretion when carrying out these tasks, many of the regulations will run into constitutional concerns: the First Amendment protects the “exercise of editorial control and judgment” by publishers over their choice of content and how it is presented. However, the editorial operation of social media platforms differs significantly from traditional media, most importantly in the use of artificial intelligence (AI) for editorial decision-making. …

The Public’S Companies, Andrew K. Jennings

Fordham Journal of Corporate & Financial Law

This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?

The studies’ results are consistent with understandings that both public and private companies have greater public …

The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier

University of Miami Law Review

Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media. …

For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen

University of Miami Law Review

Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …

Cracking The Shield: Cda Section 230, Algorithms, And Product Liability, Kevin Ofchus

University of Arkansas at Little Rock Law Review

No abstract provided.

Disrupting The Narrative: Diving Deeper Into Section 230 Political Discourse, Koustubh “K.J.” Bagchi, Elizabeth Banker, Ife Ogunleye

Pepperdine Law Review

Online spaces have undoubtedly played a significant role in facilitating discourse and the exchange of information. With this increased discourse, however, digital platforms have also seen a rise in harmful or problematic content shared online––including health misinformation, hate speech, and child sex abuse material, among others. Many commentators have put the blame for this trend on Section 230, arguing that Section 230 has enabled the spread of harmful content and suggesting that Section 230 ought to be amended or replaced. This Essay, by contrast, argues that the current narrative about Section 230 gets it wrong. In reality, Section 230 has …

This Isn't A Reality Show: How Social Media Livestreams Of High-Profile Criminal Trials May Violate One's Right To A Fair Trial, Ryan Fenn

St. John's Law Review

(Excerpt)

Since the invention of television in 1927, the American legal system faced drastic changes. In 1935, the first trial was broadcast to the public in the case of Bruno Hauptmann. During the trial, “[e]laborate telegraph equipment” was installed in the courtroom, with “sound and motion picture equipment . . . plainly visible in the [courtroom] balcony.” From 1935 on, broadcasting technology has been utilized in the courtroom to convey the inner workings of certain courts to the public, which has stimulated debate over whether the use of this technology is conducive to a fair trial under the Sixth and …

Disinformation And The First Amendment: Fraud On The Public, Wes Henricksen

St. John's Law Review

(Excerpt)

Following the 2020 presidential election, the losing candidate, Donald Trump, along with most of the Republican Party, spread the false claim that the election had been stolen by Democrats. Joe Biden, so the claim went, had not been legitimately elected, and was therefore an illegitimate President and needed to be removed. This profitable falsehood6 became known as the “Big Lie.” It was not only baseless, but it was in fact made in spite of and in direct conflict with the overwhelming evidence debunking it. This did not stop people from believing it. Millions bought into the Big Lie, which …

Texas’ War On Social Media: Censorship Or False Flag, Leni Morales

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

The New Normal: Navigating Legal Challenges In The World Of Influencer Marketing & How Adr Can Help, Olivia Davis

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Fake News And The Tax Law, Kathleen Delaney Thomas, Erin Scharff

Washington and Lee Law Review

The public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves.

That people are easily confused by taxes is nothing new. With the rise of social media platforms, however, the speed at which misinformation campaigns can now move to shape public opinion is far faster. …

A Matter Of Motive: Malice In The Law Of Torts In The Age Of Connectivity, Greg Bowley

Dalhousie Law Journal

To meet the challenges posed by the novel modes of interpersonal relationships of contemporary society, Canadian tort law must develop a general principle of liability for the intentional infliction of harm. This principle would recognize the normatively-significant common thread of the wrongdoer’s intention to cause harm to another person in phenomena as varied as doxing, swatting, revenge porn, cyberstalking, impersonation, trolling, and harassment. The recent development of discrete, context-specific torts in response to problematic social media conduct is an inherently limited approach to novel interpersonal conduct. However, it also offers an opportunity for the enunciation of a general principle of …

Silencing Students: How Courts Have Failed To Protect Professional Students’ First Amendment Speech Rights, Shanelle Doher

Washington and Lee Law Review Online

Over the past two decades, social media has dramatically changed the way people communicate. With the increased popularity of virtual communication, online speech has, in many ways, blurred the boundaries for where and when speech begins and ends. The distinction between on campus and off campus student speech has become particularly murky given the normalization of virtual learning environments as a result of the COVID 19 pandemic. In Tinker v. Des Moines Independent Community School District, the Supreme Court clarified that students retain their First Amendment rights on campus but that schools may sanction speech that materially and substantially …

Beyond Section 230 Liability For Facebook, Nancy S. Kim

St. John's Law Review

(Excerpt)

In October 2021, a former Facebook employee, Frances Haugen, publicly revealed that the company's internal research documented harms that its products caused some of its users. The company’s response was sadly predictable. It questioned the reliability of Haugen’s testimony, asserted its commitment to doing the right thing, and then diverted the public’s attention by changing its name to Meta. The company’s deny-and-distract tactics were, by now, all too familiar and provided few answers.

More than any other platform company, Facebook has found itself at the center of controversy. Its advertisement-supported business model relies upon user engagement which means that …

Freedom Of Algorithmic Expression, Inyoung Cheong

University of Cincinnati Law Review

Can content moderation on social media be considered a form of speech? If so, would government regulation of content moderation violate the First Amendment? These are the main arguments of social media companies after Florida and Texas legislators attempted to restrict social media platforms’ authority to de-platform objectionable content.

This article examines whether social media companies’ arguments have valid legal grounds. To this end, the article proposes three elements to determine that algorithms classify as “speech:” (1) the algorithms are designed to communicate messages; (2) the relevant messages reflect cognitive or emotive ideas beyond mere operational matters; and (3) they …

Crowdsourcing Justice, Matthew Dylag

Canadian Journal of Law and Technology

Social media has become ubiquitous in the daily lives of Canadians. Beyond connecting with friends and family, people also turn to social media to find information and seek advice on any number of topics, be it home cooking, workout routines, or automobile purchases. Indeed, social media is a flexible vehicle that can be leveraged for communication on almost any topic. It is not surprising, therefore, that individuals are also turning to social media to help resolve their legal problems. Even a cursory examination of social media will reveal that it is not uncommon for individuals who are experiencing legal difficulties …

Adopting Social Media In Family And Adoption Law, Stacey B. Steinberg, Meredith Burgess, Karla Herrera

Utah Law Review

Social media has dramatically changed the landscape facing families brought together through adoption. Just as adoptive families thirty years ago could not have predicted the impact of DNA technology on postadoption family life, adoptive families are only now beginning to grasp the impact of social media connectivity on the lives of their growing children. This change is related both to social media’s impact on family life and to fundamental shifts in our understanding of privacy more generally. Understanding the legal rights of parents and children in these circumstances is a novel and underexplored area of family law, constitutional law, and …

In A League Of Her Own: Why Female Student-Athletes Are Poised To Win Big In The Nil Era With A Properly Crafted Federal Law, Anna G. Williams

West Virginia Law Review

No abstract provided.

Comrades Or Foes: Did The Chinese Break The Law Or New Ground Ground For The First Amendment, Artem M. Joukov

West Virginia Law Review

Prior to exiting the White House, President Trump placed a variety of restrictions on Chinese-owned social media applications, TikTok and WeChat, threatening to greatly curtail their influence in the United States. While couching his actions in the context of national security, the former president engaged in viewpoint discrimination in plain violation of the First Amendment to the United States Constitution. The court rulings in favor of TikTok and WeChat were encouraging and should stem the tide of future government regulations of social media platforms. This article discusses how the decisions fit into the greater context of First Amendment jurisprudence and …

The Influencers And The Influenced: Effects Of Social Media Influencers On Enforcement Of Trademark Law In The U.S. And Europe, Abigail Dagher

Emory International Law Review

No abstract provided.

How To Get Away With Discrimination: The Use Of Algorithms To Discriminate In The Internet Entertainment Industry, Sumra Wahid

American University Journal of Gender, Social Policy & the Law

In July 2021, Ziggi Tyler posted a video on TikTok, a popular video sharing platform, where he expressed his frustration with being a Black content creator on TikTok. The video showed Ziggi typing phrases such as “Black Lives Matter” or “Black success” into his Marketplace creator bio, which the app would immediately flag as inappropriate content. However, when Ziggi replaced those words with “white supremacy” or “white success,” no inappropriateness warning appeared. Although a TikTok spokesperson responded to the video clarifying that the app had mistakenly flagged phrases without considering word order, Ziggi refused to let an algorithm absolve TikTok …

Letter Form The Editor, Wayne Rash, Iii

American University National Security Law Brief

In our last issue of The National Security Law Brief, Vol. 13, No. 1, we highlighted the dynamism that makes National Security Law such an exciting field. In this issue, No. 2, we continue with the dynamism theme. National security law is a field in constant change that often leaves us questioning how these changes will shape the law.