First Amendment Commons^™

Disentangling Disinformation: What Makes Regulating Disinformation So Difficult?, Jason Pielemeier

Utah Law Review

This Essay articulates some of the critical ways in which disinformation differs from other categories of harmful content and explores some of the early efforts by platforms and governments to address the issue. It begins by analyzing the semantics around disinformation, explaining how specific terminology can allude to distinct concerns. It then explores the similarities and differences between disinformation and related categories of harmful content, like hate speech and terrorist incitement, before examining some of the corporate and regulatory initiatives that have emerged. It concludes with some observations and cautionary notes for corporate and governmental policy makers as they consider …

Information Hacking, Derek E. Bambauer

Utah Law Review

The 2016 U.S. presidential election is seen as a masterpiece of effective disinformation tactics. Commentators credit the Russian Federation with a set of targeted, effective information interventions that led to the surprise election of Republican candidate Donald Trump. On this account, Russia hacked not only America’s voting systems, but also American voters, plying them with inaccurate data—especially on Internet platforms—that changed political views.

This Essay examines the 2016 election narrative through the lens of cybersecurity; it treats foreign efforts to influence the outcome as information hacking. It critically assesses unstated assumptions of the narrative, including whether these attacks can be …

In A World Of “Fake News,” What’S A Social Media Platform To Do?, Evelyn Mary Aswad

Utah Law Review

While the circulation of disinformation and misinformation online can pose a variety of risks to societies around the world, it should also be of concern that overreacting to such false information can undermine human rights, including freedom of expression. The business operations of global social media platforms frequently intersect with this latter concern because of a spike in the adoption of national laws that ban “fake news” as well as their own platform policies to tackle false information. This Essay assesses the corporate responsibility standards afforded by the United Nations’ Guiding Principles on Business & Human Rights as well as …

Who Will Check The Checkers? False Factcheckers And Memetic Misinformation, Andrew Moshirnia

Utah Law Review

This Essay sets out the need for disciplined fact-checking networks and the likely counterattacks of domestic and foreign propagandists. Part I sets out the continuing social media disinformation campaigns infecting elections worldwide, which stoke internal divisions and undermine public discourse. Part II details factchecking efforts and their effectiveness, with specific attention paid to the neutralization of memes designed to inflame racial hatred. Part III examines disturbing trends that threaten the fact-checking mission, including an internallydriven tendency towards false equivalence and foreign-directed efforts to create imposter fact-checkers. Part IV offers an overview of potential solutions and areas for future study.

Media Literacy Beyond The National Security Frame, Lili Levi

Utah Law Review

The Trump administration’s delegitimizing refrain characterizing legacy media as “fake news” institutions has doubtless exacerbated growing public distrust in government and accountability institutions. It has also promoted arrogation of power by the Executive. Media literacy must be broadened to encompass the more capacious goal of helping citizens understand the structure, operations, and structural role in democracy, and the interconnected ways in which it is threatened. Expanding the public’s understanding of the proper role of the press and the ways in which modern information industries operate attention markets, promoting the audience’s awareness of its own cognitive blind spots, increasing reporters’ critical …

How Single-Candidate Super Pacs Changed The Game And How To Change It Back: Adopting A Presumption Of Coordination And Fixing The Fec’S Gridlock, Sarah E. Adams

Brooklyn Law Review

A series of Supreme Court decisions chipping away at campaign finance regulations, particularly the regulation of expenditure-only groups, has resulted in a proliferation of single-candidate Super PACs. While purportedly independent of the candidate, in reality, single-candidate Super PACs operate as an extension of the candidate’s own campaign team. This note argues that single-candidate Super PACs, now operating as fundamental extensions of candidates’ campaigns, pose quid pro quo corruption risks by acting as surrogates for donors who have maxed out on contributions made directly to a candidate. This note will prove that curbing the proliferation of candidate Super PAC coordination, and …

Not Gill-Ty: Challenging And Providing A Workable Alternative To The Supreme Court's Gerrymandering Standing Analysis In Gill V. Whitford, Colin Neal

William & Mary Bill of Rights Journal

No abstract provided.

Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen

William & Mary Bill of Rights Journal

No abstract provided.

Saving The Marketplace From Market Failure: Reorienting Marketplace Theory In The Era Of Ai Communicators, Jared Schroeder

William & Mary Bill of Rights Journal

Artificially Intelligent (AI) communicators represent a new type of actor within public discourse. These entities have played influential roles in recent elections in the U.S. and Europe. This Article examines expression rights for AI actors through the lenses provided by the foundational assumptions of the marketplace of ideas theory and existing free-expression-related rationales regarding non-human actors in the U.S. and European legal systems. The Article contends that the fundamental assumptions of the marketplace model must be revised to focus on the flow of information, the development of truth, rather than the more Enlightenment-oriented competition of ideas that leads to the …

The Bad News Of Good News Club: Obliterating The Wall Between Church & State, Kevin W. Connell

William & Mary Bill of Rights Journal

No abstract provided.

America's Newest Boogeyman For Deviant Teen Behavior: Violent Video Games And The First Amendment, Joseph C. Alfe, Grant D. Talabay

Pace Intellectual Property, Sports & Entertainment Law Forum

Are violent video games harming America’s youth? Is it possible a series of interconnected circuit boards can influence children (or even adults) to become, themselves, violent? If so, how should our society-- and government-- respond?

To properly answer this last query, violent video games must be viewed through the lens of the First Amendment. Simply put: do games depicting grotesque acts of depravity so profound as to negatively influence the psyche warrant the full constitutional protections ordinarily guaranteed under the mantle of free speech and expression? Are these guarantees without limit? If not, how far may the government go in …

Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen

Cleveland State Law Review

Currently, the federal circuit courts split on whether public employers can discipline their employees for legal, off-duty sexual activity. The Fifth and Tenth Circuits permit discipline in these scenarios; the Ninth Circuit does not. At issue is whether certain public employees, like police officers, should be held to a higher standard because of their duty to the public or whether the Constitution entitles them to privacy rights that shield them from discipline. This Note concludes the latter and argues against punishing the legal, off-duty sexual conduct of all public employees. Because the right to sexual privacy already exists within the …

Contracts And The Constitution In Conflict: Why Judicial Deference To Religious Upbringing Clauses Infringes On The First Amendment, Elica Zadeh

Pepperdine Law Review

When a Hasidic person files for divorce under New York law, either party to the marriage may invoke a declaratory judgment action to establish certain rights in a settlement agreement. If children are involved, such an agreement may include a religious upbringing clause, dictating that the child is to be raised in accordance with their then-existing religion—Hasidism. Deviation from the contract risks removal from the aberrant parent who intentionally or unwittingly allows the child to wane into secularism. Although the child’s best interest is the cornerstone of custodial analysis, a problem emerges when his or her best interest is couched …

Compelled Speech And The Irrelevance Of Controversy, Seana Valentine Shiffrin

Pepperdine Law Review

NIFLA v. Becerra stealthily introduced a new First Amendment test for compelled speech that has injected chaos into the law of compelled disclosures. NIFLA reinterpreted the requirement that compelled disclosures contain only “purely factual and uncontroversial information” in a way that imbued independent force into the “uncontroversial” component of that test. Yet, the Court failed to supply criteria for what sort of purely factual information would fail to qualify as “uncontroversial information” and identified no important free speech concerns that this new prong protects. This Article distinguishes seven different interpretations of “uncontroversial information.” It then assesses them to ascertain whether …

Cameras Down, Hands Up: How The Supreme Court Chilled The Development Of The First Amendment Right To Record The Police, Christina Murray

Mercer Law Review

You may not realize this, but the Supreme Court of the United States has possibly jeopardized one of your First Amendment rights: the right to record the police. While this right may mean little to you now, it could serve as a means of protecting your other rights and in keeping law enforcement accountable. Because of the right to record the police, we have documented footage of police brutality from Missouri to Louisiana. These recordings have sparked outrage and fueled a conversation around policing, race, and our country's values.

This Comment will track the development of the right to record …

International Megan's Law As Compelled Speech, Alexandra R. Genord

Michigan Law Review

“The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).” International Megan’s Law (IML), passed in 2016, prohibits the State Department from issuing passports to individuals convicted of a sex offense against a minor unless those passports are branded with this phrase. The federal government's decision to brand its citizens’ passports with this stigmatizing message is novel and jarring, but the sole federal district court to consider a constitutional challenge to the passport identifier dismissed the plaintiffs’ First Amendment claim, deeming the provision government speech. …

Disappearing Act: Are Free Speech Rights Decreasing?, Michael Conklin

St. Mary's Law Journal

Abstract forthcoming.

Artificial Entities With Natural Rights: Pursuing Profits At The Expense Of Human Capital, Loren M. Findlay

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the legal and constitutional rights granted to corporations and highlights how these corporate benefits are often at the expense of individuals. Over the past century, the corporation has evolved, taking on human-like characteristics. While many statutes and the Constitution use the word “person,” courts have inconsistently interpreted the definition of “person” in determining when it expands to corporations. In courts’ ad hoc analysis and interpretation, individuals get the metaphorical short-end of the stick.

The First Amendment of the Constitution was interpreted by the U.S. Supreme Court to afford the right of free speech to corporations in the …

“Opening The Door” To Presidential Press Conferences: A Framework For The Right Of Press Access, Alexandria R. Taylor

Washington and Lee Journal of Civil Rights and Social Justice

Since President Donald Trump took office in 2017, there has been tension between the White House and the press. While this tension has been present in prior presidencies, its current manifestation raises important First Amendment issues. This Note discusses the limitations of the President to restrict the press’s right of First Amendment access to presidential press conferences. After delving into the Supreme Court’s development and recognition of the press’s right of access and how the lower courts have interpreted this right, this Note proposes a framework to analyze the press’s right of access and addresses the question of when and …

School To Students: Post That, And You Won't Play, Ashley Waddoups

BYU Law Review

No abstract provided.