FAN 191 (First Amendment News) “Robotica” — First Book on Speech Rights & Artificial Intelligence Published

If any current scholarly work of free speech theory survives into the next century, it will undoubtedly be this book.
Abstract: As more and more communication becomes robotized and/or is driven by artificial intelligence, a variety of questions arise about the relation between the government’s regulation of such communication and First Amendment law. Such robotized communication involves everything from our home appliances, automobiles, phones, computers, and more. Ever more press stories are today being written by algorithmic design, and stock transfers follow a similar path of communication.

But is such data speech under the First Amendment? Are such transfers even communication within the meaning of the First Amendment? And if so, to what extent, any why, can the government regulate these new technologies? Such questions and others are explored for the first time in book form in  the latest work by First Amendment scholars Ronald Collins and David Skover.

Professor David Skover

The book (their tenth) is ROBOTICA: SPEECH RIGHTS & ARTIFICIAL INTELLIGENCE (Cambridge University Press, June 2018).

  Following the main text, are four commenatries by Ryan Calo, Jane Bambauer, James Grimmelmann, and Bruce E.H. Johnson. The authors thereafter reply to the commentaries.

Advance Praise

“Collins and Skover have produced a wonderfully readable, thorough, and insightful exploration of the intersection of technology and free speech theory, from the beginning of time well into the future. If any current scholarly work of free speech theory survives into the next century, it will undoubtedly be this book.” — Martin Redish, Louis and Harriet Ancel Professor of Law, Northwestern University Law School

“Collins and Skover have long been among the finest minds focused on free expression in America. In this remarkable book, they now turn insightfully to an incredibly complex and timely issue associated with ‘robotic expression’: how should the First Amendment handle contests involving regulation of ‘robot speech’ as artificial intelligence grows rapidly in prominence? This book conveys their deep knowledge – and the knowledge of other noted scholars – of the history, law, and technology that inform the way we should think about this emerging field of constitutional inquiry. ” — John Palfrey, Head of School at Phillips Academy, Massachusetts & former Executive Director of the Berkman Center for Internet and Society, Harvard University

New Book on Right of Publicity 

Jennifer Rothman has written an important, informative study of the right of publicity as it has developed in the United States and its connections to a robust privacy right. By reexamining the past, she has elaborated principles that will be useful in defining both publicity and privacy rights for the digital age.Rebecca Tushnet, Harvard Law School

Abstract: Who controls how one’s identity is used by others? This legal question, centuries old, demands greater scrutiny in the Internet age. Jennifer Rothman uses the right of publicity―a little-known law, often wielded by celebrities―to answer that question, not just for the famous but for everyone.

In challenging the conventional story of the right of publicity’s emergence, development, and justifications, Rothman shows how it transformed people into intellectual property, leading to a bizarre world in which you can lose ownership of your own identity. This shift and the right’s subsequent expansion undermine individual liberty and privacy, restrict free speech, and suppress artistic works.

The Right of Publicity traces the right’s origins back to the emergence of the right of privacy in the late 1800s. The central impetus for the adoption of privacy laws was to protect people from “wrongful publicity.” This privacy-based protection was not limited to anonymous private citizens but applied to famous actors, athletes, and politicians. Beginning in the 1950s, the right transformed into a fully transferable intellectual property right, generating a host of legal disputes, from control of dead celebrities like Prince, to the use of student athletes’ images by the NCAA, to lawsuits by users of Facebook and victims of revenge porn.

The right of publicity has lost its way. Rothman proposes returning the right to its origins and in the process reclaiming privacy for a public world.

→ RelatedRothman’s Roadmap To The Right of Publicity

Steve Brill’s Latest Book Discusses First Amendment Law (among other things)

Abstract: “In this revelatory narrative covering the years 1967 to 2017, Steven Brill gives us a stunningly cogent picture of the broken system at the heart of our society. He shows us how, over the last half-century, America’s core values–meritocracy, innovation, due process, free speech, and even democracy itself–have somehow managed to power its decline into dysfunction. They have isolated our best and brightest, whose positions at the top have never been more secure or more remote.”

→ While it is not entirely about law, there is a fairly extended discussion of the First Amendment and commercial and corporate speech. In particular, Brill focuses on some debates between Professors Robert Post and Martin Redish. 

Committee on Oversight & Government — Challenges to the Freedom of Speech on College Campuses

“College administrators must accept blame for the severe restrictions on free speech seen on campuses and should be held accountable by Congress so First Amendment rights in higher education can be protected, several pro-free speech panelists told Congress on Tuesday.”

“‘Make them fess up,’ Princeton University Professor Robert George told members of the subcommittees on healthcare, benefits and administrative rules and intergovernmental affairs during a joint hearing on ‘Challenges to the freedom of speech on college campuses’ . . .”

New Scholarly Article — 0n Free Press & National Security 

Alan Wehbé

AbstractFreedom of the press is a cherished freedom enshrined in the First Amendment and upheld in myriad contexts. However, under the prevailing case law and without a federal shield law, the executive branch may be able to “annex the journalistic profession as an investigative arm of government” to reveal its‘confidential’ sources as aid to prosecution. This would serve to chill the freedom of the press and conflicts with the spirit of the First Amendment. In many cases, courts have failed to extend the common law to such protection. The legislative branch should step in to make such protection clear. For example, in the field of national security, where the stakes are so high, the Government utilizes federal laws, such as the Espionage Act, to prosecute so state shield laws provide inconsistent and insufficient protection against federal prosecution. The case for a federal shield law is heightened in the matters of national security, which is different and where, arguably, the stakes are higher. Based upon the aforementioned discussion, this Article reinvigorates the argument in favor of a federal reporter’s shield law, specifically implemented as an evidentiary privilege under the Federal Rules of Evidence.

→ Related — Alan Wehbé, Increasing International Legal Protections for Freedom of Expression, Notre Dame Journal of International & Comparative Law (2018)

New Scholarly Article — on First Amendment Coverage 

New Scholalrly Article — on Future of Burger Court’s First Amendment Jurisprudence

New Scholarly Article — on Managing Dissent

New Podcast — On Medieval Heretics & Inquisitors

This is an especially fascinating podcast epsiode — rklc 

From the High Middle Ages, Europe developed into a “persecuting society,” obsessed with stamping out the “cancer” of heresy. But questions about how this was accomplished — and the consequences of these developments — abound:

  • Why did popes and secular rulers shift from persuasion to persecution of heretics?
  • Why was human choice in matters of religious belief considered a mortal threat to Christendom itself?
  • Why did bookish inquisitors armed with legal procedure, interrogation manuals, data and archives succeed where bloody crusades and mass slaughter failed?
  • How did the “machinery of persecution” developed in the Late Middle Ages affect other minority groups such as Jews?
  • Are inquisitions a thing of a past and dark hyper-religious age, or a timeless instrument with appeal to the “righteous mind” whether secular or religious?
  • What are the similarities between medieval laws against heresy and modern laws against hate speech?

We try to answer these questions — and more — in the latest episode of our Clear and Present Danger podcast.

New Podcast — on Street v. New York

What pushes a 51 year-old decorated World War II veteran to burn the American flag? In June of 1966, Sidney Street heard the news that James Meredith, an icon of the Civil Rights Movement, had been shot on the second day of his March Against Fear. Street, an African American himself, burned the flag and was arrested. Street declared, “If they let that happen to Meredith, we don’t need an American flag.” So sparked the question of whether the government can punish someone for using words to defile or disrespect an American flag.

In this episode of Make No Law, the First Amendment Podcast by, host Ken White examines Street v. New York, the Supreme Court case which concluded that the First Amendment allows freedom of expression towards the American flag — if not yet the right to burn it. The episode features the input of Professor Aram Goudsouzian, the chair of the History Department at the University of Memphis, and the author of the book Down to the Crossroads: Civil Rights, Black Power, and the Meredith March Against Fear.

The episode also features a listener question from Ben Olson about the inclusion of the word “Congress” in the First Amendment — if the First Amendment says it only applies to Congress, why is it applied to protect us from action by state and local government? This question leads Ken to discuss the Fourteenth Amendment and the Incorporation Doctrine. If there’s a case you want to hear about, or a First Amendment question you’d like answered on the podcast, email Ken at:

New Podcast — Is there a campus free speech crisis?

Is there a campus free speech crisis? In March, FIRE staff discussed the question. On today’s episode of So to Speak: The Free Speech Podcast, we put the question to others and feature audio from a live debate that occurred on May 8 in New York City.

New York magazine’s Andrew Sullivan (video here) and New York University’sJonathan Haidt argue, yes, there is a campus free speech crisis.

PEN America’s Suzanne Nossel and Acadia University’s Jeffrey Sachsargue, no, there is not.

Freethink’s Kmele Foster moderates.

The debate took place at The Village Underground and was sponsored by FIRE and the Comedy Cellar as a part of “The Underground Debate Series.”

Blog Posts from The Volokh Conspiracy

News, Editorials, Op-eds & Blog Posts

  1. Alicia Shepard, Donald Trump’s Amazon-Washington Post-Jeff Bezos attacks are attacks on First Amendment, USA Today, May 22, 2018
  2. Dara Kam, State Corrections Agency Wins First Amendment Dispute, Daily Business Review, May 22, 2018
  3. David D. Kirkpatrick, Is Facebook Just a Platform? A Lawyer to the Stars Says No, New York Times, May 21, 2018
  4. Binghamton University campus police surveil students and threaten prosecution over anti-racism flyers, FIRE, May 21, 2018
  5. Alex Swoyer, White supremacist groups cite First Amendment rights in battling against Charlottesville lawsuit, Washington Times, May 20, 2018
  6. Michigan State University’s Settlement with Gymnasts Could Set First Amendment Precedent, First Amendment Watch, May 18, 2018

Flashback — Christopher Hitchens on Free Speech

Christopher Hitchens (1949-2011)

The real question — utterly dodged — is this: who’s going to decide? Who will you appoint to be the one who says, ‘I know exactly where the limit should be, how far you should go, and when you’ve gone too far’?

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted & Cases Argued 

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
  2. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  3. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  4. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  5. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  6. Benisek v. Lamone (argument: March 27, 2018)

Pending: Cert. Petitions 

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Flanigan’s Enterprise, Inc. v. City of Sandy Springs
  3. Nationwide Biweekly Administration, Inc., et al v. Perez
  4. CTIA v. City of Berkeley 
  5. Harris v. Cooper 
  6. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  7. Livingwell Medical Clinic, Inc. v. Becerra
  8. Berninger v. Federal Communications Commission

Review Denied

  1. Holmes v. Federal Election Commission
  2. Walker v. N.Y.C. Dep’t of Educ. et al.
  3. Shepard v. Florida Judicial Qualifications Commission 
  4. Morris v. Texas (dismissed for want of jurisdiction)
  5. Connecticut v. Baccala
  6. Tobinick v. Novella
  7. Muccio v. Minnesota
  8. Elonis v. United States
  9. Final Exit Network, Inc. v. Minnesota 

Free-Speech Related Cases: Cert. Granted

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)

Free-Speech Related Cases: Cert. Pending

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)

Free-Speech Related Cases: Cert. Denied

Last Scheduled FAN # 190Seattle U. Law School’s Homeless Rights Advocacy Project Issues Report on Begging Restrictions in Washington State

Next Scheduled FAN # 192: Wednesday, May 30, 2018

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