Category: Constitutional Law

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FAN 200 (First Amendment News) Jasmine McNealy, Newsworthiness, the First Amendment, and Platform Transparency

Jasmine McNealy is an assistant professor in the Department of Telecommunication, in the College of Journalism and Communications at the University of Florida, where she studies information, communication, and technology with a view toward influencing law and policy. Her research focuses on privacy, online media, and communities. She holds a PhD in Mass Communication with and emphasis in Media Law, and a J.D. from the University of Florida. Her latest article is “Spam and the First Amendment Redux: Free Speech Issues in State Regulation of Unsolicited Email,” Communication Law & Policy (2018).

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Professor Jasmine McNealy

As of late the controversy, unrelated to the government, of most attention is the banning of Infowars founder and host Alex Jones from various social media sites including Facebook, YouTube, and Vimeo. Jones, purveyor of all manner of racist, sexist, you-name-it conspiracy theories, has drawn ire for spreading a conspiracy theory about the parents of children and teachers killed in the Sandy Hook mass shooting. He is currently being sued by a group of parents who assert that Jones defamed them by claiming that they and their children were crisis actors and not actual victims.

The Jones social media content cull, though some say belated, is interesting for sparking a larger discussion. In a decision met with outrage Twitter, a site now notorious for making controversial decisions about the kinds of content it will allow, had decided not to ban Jones. He would be banned a few days later. Twitter CEO Jack Dorsey, explained that Jones had not violated it rules against offensive content, a contention that has been challenged. But of more significance is the lack of definition of what actually is considered offensive content, not just for Twitter, but across the various social media sites.

Alex Jones (credit: Political Dig)

Of course, Twitter and other social media sites are private organizations, therefore claims that sites are violating freedom of expression by banning offensive speech are based less in law and more on, at most, ethical considerations. But social platforms play an increasingly significant role in how individuals seek, send, and receive information. In a study published in 2017 by Pew Research Center of American adults who get news from online sources, 53% of participants self-reported getting news from social media. Sixty-two percent reported getting news from search engines, which may lead to social sites. These numbers point to social media sources as playing an important role in the information that people encounter.

How, what, and the volume of information people encounter is important for decision-making. Platform decision about content users see is an issue of concern as more platforms move to algorithmically generated timelines that curate what we see. Zeynep Tufekçi has written that algorithmic timeline curation disrupts the potential for users to choose for themselves the value of the content they encounter, also asserting that YouTube’s algorithm-based recommendation system could be “one of the most powerful radicalizing instruments of the 21stcentury,” for its recommendations of extreme content. Companies like YouTube offer little, if any, insight into how their algorithms work.

The decision by social platforms – algorithmically or not – about whether users are able to see posts and the kinds of content acceptable for posting is a value judgment. Under a traditional rubric, offensive speech, presumably, would have little to no value and could, therefore, be either banned or hidden from other users. But platforms like Facebook and Twitter, however, have rejected offering a concrete definition of what they define as offensive, when said by whom, and in what context. Instead the platforms, though offering written statements as well as having their individual CEOs offer vague explanations, have left offensiveness open to interpretation.

A recent study from Caitlin Carlson and Hayley Rousselle at the University of Seattle testing Facebook’s offensive speech reporting mechanism found that though Facebook would remove some of the posts reported during their study, a significant number of racist, sexist, and otherwise offensive materials were allowed to remain visible, and that there was no discernible rationale for these content moderation decisions. Even after Facebook revealed the community standards its content moderators use in April 2018, investigative reports revealed that moderators have been told to temper their content removal efforts. So while a platform may reveal its objectionable content standards, in practice, offensiveness decisions are a black box– lacking transparency into how both human and algorithmic content moderation value judgments are made.

That an organization would make a judgement about the value of information is not novel. What we consider traditional news organizations have always made judgments about the value of information, and these gatekeeping decisions about what is newsworthy are many times bolstered by First Amendment jurisprudence. The Supreme Court has of declined to enforce laws mandating that news organizations (outside of broadcast) publish certain information. In Miami Herald v. Tornillo, for instance, in which the newspaper argued that a Florida statute requiring it to publish candidate responses to criticism infringed on press freedom, the Court agreed, finding that such a requirement was an “intrusion on the function of editors.”

(credit: Heartland Newsfeed)

Of course, the judgement of newsworthiness by the press is found most often in cases against news organizations for invasion of privacy. The newsworthiness of information is a First Amendment-based defense against privacy actions seeking redress for the publication of information highly offensive to a reasonable person. In these cases, if the information is of a legitimate public interest, the publisher will not be found liable for injury. And the courts have used many different tests for newsworthiness.  A prominent newsworthiness test “leaves it to the press” to decide the bounds of what is of a legitimate public interest. Perhaps the most common of the tests, used in Virgil v. Time and enshrined in the Restatement of Torts, considers the “customs and conventions of the community” for a newsworthiness determination. For a news organization this would be a consideration of the community in which it is centered. For social media this could mean the community that it has created.

Therefore, while calls exist for policymakers and legislators to do something about the massive platforms that significantly influence the information that individuals encounter, First Amendment jurisprudence demonstrates that such incursions would most likely violate the exercise of freedom of the press. Social media users in the U.S., then, will have to find an alternative way of persuading platforms to act on objectionable content. So far, public outcry is beginning to work particularly when it targets commercial interests.

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FAN 200 (First Amendment News) Mary Anne Franks, “The Free Speech Fraternity”

Mary Anne Franks is a professor at the University of Miami School of Law. She is  the President and Legislative and Tech Policy Director of the Cyber Civil Rights Initiative, a nonprofit organization dedicated to combating online abuse and discrimination. Professor Franks authored the first model criminal statute on a practice often referred to as “revenge porn,” the unauthorized disclosure of private, sexually explicit images.

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“…who will stand against Tyranny and who will stand for free speech?  We’re all Alex Jones now.” – Alex Jones

If there is one case widely considered to illustrate the American commitment to free speech, it is that of the neo-Nazis in Skokie. In 1978, a federal appellate court ruled that the First Amendment required the town of Skokie, where one in six residents was either a Holocaust survivor or related to one, to allow members of the National Socialist Party of America (NSPA) to march through its streets. Most people familiar with the story know that the neo-Nazi marchers planned to wear Nazi-style uniforms and display swastikas during their demonstration. A lesser-known detail is that they also planned to carry placards bearing various slogans, including “Free Speech for the White Man.”

The sign was a crude provocation, but it was also an apt description of the state of free speech in the United States, and not only in 1976. Since the First Amendment was enacted in 1791 and continuing into the present day, the theory and practice of free speech has been dominated by white men.

The First Amendment, like the rest of the Constitution and the Bill of Rights, was written and enacted by a group of white men who deliberately excluded all women and people of color from participation in the political process. The body tasked with its ultimate interpretation, the Supreme Court, was composed entirely of men until 1981 (exclusively of white men until 1967). To put that in perspective, of the 113 Supreme Court Justices that have served in its 228-year history, all but six have been white men. Of the 500 or so cases that the Supreme Court has heard involving the First Amendment and free speech, all but about 60 were brought by men and all but 38 were litigated by men.

From the Catholic Church to Hollywood, from Silicon Valley to the White House, it has become painfully clear that male-dominated institutions and industries are rife with bias, abuse, exploitation, and corruption. White men’s outsized influence over the creation, interpretation, and application of First Amendment doctrine and practice calls for its own reckoning: an accounting of the harms it has inflicted and a reorientation of free speech priorities.

The free speech questions of our time should focus on how traditional interpretations of the First Amendment have served to silence vulnerable populations and undermine democracy. Among those questions should be how more than two centuries of professed commitment to freedom of speech have co-existed with the systematic censorship of half of the American population — women. At the time the First Amendment was written, the doctrine of “coverture” provided that married women had no independent legal existence apart from their husbands, including no independent right of free speech. Women were formally prevented from exercising the most basic form of political expression – the vote – for more than a century. Long after the 19thAmendment was passed in 1920, women continued to be barred from the political, employment and educational opportunities available to men, resulting in the exclusion of their voices from public spaces, workplaces and schools.

A society committed to free speech should dedicate itself to closing the free speech gender gap.It would acknowledge how multiple forces, including domestic violence, sexual assault, stalking, sexual harassment, rape threats, and “revenge porn,” silence women in multiple places, including workplaces, schools, public streets, online and offline spaces. It would prioritize ongoing threats to speech by and for women, including nondisclosure agreements that prevent women from speaking about sexual assault and harassment, defamation lawsuits used to intimidate rape victims, and gag rules prohibiting women from receiving information about abortion. A true free speech society would take seriously how the threat of male violence has a chilling effect on women’s speech, deterring their full participation in political, economic, and cultural life.

Alex Jones (credit: Political Dig)

Instead, free speech theory and practice continues to be dominated by white men’s interests. Far from being condemned, denying women’s free speech is often praised, in Orwellian fashion, as the exercise of free speech. White men who attack women, minorities, and other vulnerable groups are made into free speech martyrs.

These men include Alex Jones, the head of a powerful media empire who has harassed the parents of dead children, claimed that Hillary Clinton ran a child sex trafficking ring out of a pizzeria, and stands accused of domestic violence and sexual harassment, as well as Milo Yiannopoulos, Richard Spencer, and Andrew Anglin – a rightwing rogues’ gallery of white men whose free speech primarily consists of attacks on women, racial minorities, and the LGBT community. They also include the white male supremacists who, unlike the neo-Nazis who ultimately called off their march in Skokie (likely out of fear of physical retaliation by the Jewish community), carried out their plans to demonstrate in Charlottesville, Virginia in 2017, leading to the death of a peaceful female protester named Heather Heyer.

These men have many powerful allies, including the ACLU, which calls itself the “largest and oldest civil liberties organization” in the U.S. It was the ACLU that won the NSPA’s right to march in Skokie in 1978, and it was the ACLU that ensured that the “Unite the Right” organizers were allowed to hold their demonstration in a location Charlottesville  officials feared would be a public safety hazard. The ACLU also represented Milo Yiannopoulos in a 2015 lawsuit attempting to force the Washington Metropolitan Area Transit Authority to post advertisements for Yiannopoulos’s self-published book.

In a 1989 essay titled The Real ACLU, two ACLU leaders, Mary Ellen Gale and Nadine Strossen, offered this explanation for the organization’s solicitude for angry white men: “Ensuring the free speech rights of anyone, including a racist or misogynist, secures the same rights for everyone else, including an intended victim.” According to the ACLU, to defend white men’s speech is to defend the speech of women and nonwhite men, even or especially when that speech attacks and silences women and nonwhite men. Call it “trickle-down free speech,” or perhaps “all speech matters,” or “we’re all Alex Jones now.”

The ACLU’s view is often expressed as “freedom of speech for the thought we hate.” The principle is derived from Justice Oliver Wendell Holmes’s dissenting opinion in the 1929 case United States v Schwimmer: “if there is any principle of the Constitution that more imperatively calls for attachment than any other,  it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.’

But what exactly is “the thought we hate”? The civil libertarian view seems to assume that this means sexist, racist, and other speech expressing contempt and hatred for certain groups. But a closer look at the case that birthed the principle of “freedom for the thought we hate” complicates the picture.

Rosika Schwimmer

Schwimmer is, as Ronald Collins notes, the first Supreme Court free speech case argued by a woman. It is also one of the few free speech cases that was brought by a woman, Rosika Schwimmer. Technically, the case is not about the First Amendment at all, but about statutory interpretation. Schwimmer was a Hungarian-born pacifist whose citizenship application was denied due to her stated refusal to take up arms to defend the country. The majority felt that this refusal indicated that Schwimmer was “not well bound or held by the ties of affection to any nation or government” and thus “liable to be incapable of the attachment for and devotion to the principles of our Constitution that are required of aliens seeking naturalization.” In dissent, Justice Holmes wrote that while Schwimmer’s position “might excite popular prejudice,” it should not be punished on that basis. “The thought we hate” that Holmes sought to defend was a woman’s refusal to comply with the demands of power against her conscience.

Such speech has very little in common with speech supporting white male supremacy. The former challenges power; the latter seeks to entrench it. “Free speech for white men” is not some daring aspiration– it is a description of the status quo. Donald Trump’s sexist and racist speech helped him win the presidency in 2016. A 2017 poll found that more than a third of Americans feel that “America must protect and preserve its White European heritage,” while nearly 40% believe that white people “are currently under attack in this country.” One in ten Americans believes that the country has “gone too far” to achieve gender equality and 40 percent believe that women should be forced to carry pregnancies to term against their will. Racist and sexist views are openly and routinely articulated by political officials, widely broadcast by both traditional and social media outlets, and reflected in outbreaks of physical violence against women and minorities.

In the free speech fraternity, we are indeed all Alex Jones. In a true free speech community, we could all be Rosika Schwimmer.

 

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FAN 200 (First Amendment News) Kellye Testy, Foreword: Prior Restraint: Women’s Voices and the First Amendment

Kellye Testy was the first woman to lead the University of Washington School of Law, serving as dean from 2009-17. From 2004-09 she was the dean of Seattle University School of Law (and its first female dean as well). In 2016, Dean Testy was president of the Association of American Law Schools (AALS). She now serves as the president and CEO of the Law School Admission Council (LSAC).

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Kelly Testy

Like other terms in law, the meaning of the First Amendment springs from many sources – the intent and language of the drafters, those originally called upon to interpret it, and then others who have explained it since. Drafters, lawmakers, lawyers, judges, scholars, and activists, too, have all, in one way or another, added to the bounty that has produced the jurisprudence of the First Amendment.

While Mr. Madison’s constitutional handiwork gave rise to an enormous number of cases, controversies, and critiques, substantially all of those came to be seen as largely, if not exclusively, the work of men. Just consult any list of First Amendment greats, or any summary of First Amendment history (even wiki), and what are you likely to find?  Lists and pictures of (typically white) men.

Why is this so? Is it because women were excluded from the interpretive mix? To a large extent, yes. After all, Mr. Madison did not share the drafting table or parlor room debates with women. So much for women and originalism. Much the same holds true for judges from the time of Holmes and Brandeis through that of Black and Brennan. Women were admitted to law schools in very small numbers until the mid-1970s, which limited (and continues to limit) women’s influence in law.

Professor Catharine MacKinnon 
(credit: Charlie Rose)

And what of First Amendment scholars? Here, too, sex discrimination has restrained women’s voices in many ways, from hiring practices to course assignments, to what “counts” as First Amendment scholarship. To take one example, consider Catharine MacKinnon’s significant critique of protecting pornography as speech under the First Amendment. Whether we agree with her viewpoint or not, her argument about the First Amendment was influential and creative. Yet, her work is more likely to be seen as about “pornography” or “sex discrimination” than about the First Amendment.

    Olive Rabe (credit: Marty Caivano)

A final point about the possible reasons for the relative lack of women’s visibility in First Amendment jurisprudence bears note. We may often be more eager to protect freedoms and rights that we feel we have and enjoy using. Put simply, men who have had “free speech” want to keep speaking. But women’s speech has been restrained, both as a matter of formal law and of social practices, including violence. Much of women’s energy has had to be directed to gaining the right to speak and, then, to finding one’s voice. To again reference Professor MacKinnon’s work:  “Take your foot off our necks, then we will hear in what tongue women speak.”

More and more, we do hear women speak – at least some women. Women’s access to speech (and being heard) is differentially distributed based on intersectional identities, including race and class. What will be interesting to monitor as that voice continues to expand (consider, e.g., #metoo), is how greater diversity in who holds the microphone will, in turn, influence the meaning of the First Amendment.

The future meaning of the First Amendment will be all the richer if we also do more to recognize the historical contributions women have already made. I was thus delighted to see that in FAN 199.

Patrica Millett (now judge / credit:
Illinois Alumni Association)

Ron Collins, my friend and colleague, compiled the names of women and the First Amendment free expression cases they argued in the Supreme Court. I, for one, had no idea that Olive H. Rabe, a labor lawyer, represented the respondent in United States v. Schwimmer (1929), another one of the cases remembered because of a Holmes dissent. I was also surprised to learn that Patricia Millett (now a federal D.C. Circuit Judge Millett) argued two First Amendment cases in the Supreme Court – first as a government lawyer and then as private counsel.

Moreover, and thanks again to Professor Collins, it is exciting to see 15 women join in this 200th issue of FAN to express a wide range of views – liberal, libertarian, feminist, and practitioner focused as well. My point is not ideology but inclusion, which requires opportunity and encouragement. Only then will women be able to add their own ideas, values, and judgments to the meaning of the First Amendment. Moreover, only then will our understanding of the First Amendment be deepened. Inclusion is the right strategy not only because it is honorable, but also because it generates a better result.

It is against that backdrop that I am grateful to have been asked to write the Foreword to this welcome and exciting symposium. I encourage others to help bring greater visibility to women’s contributions to all areas of law and to also encourage and inspire women to work in this and other areas of law and policy. Only through radical and persistent inclusion will we build a system of law and justice under which we all may thrive. Onward!

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FAN 200 (First Amendment News) Margot E. Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”

Margot E. Kaminski is an associate professor of law at the University of Colorado Law School. She specializes in the law of new technologies, focusing on information governance, privacy, and freedom of expression. Her forthcoming work on transparency and accountability in the EU’s General Data Protection Regulation (GDPR) stems from her recent Fulbright-Schuman Innovation Grant in the Netherlands and Italy.

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Professor Margot Kaminski

The Supreme Court’s recent Fourth Amendment cases show a strong awareness that privacy can implicate First Amendment values. In June 2018 in Carpenter v. United States, a case addressing warrantless location tracking through cell phone records, the majority noted that a lack of privacy can reveal (and presumably chill) “familial, political, professional, religious, and sexual associations.” In Riley v. California, a 2014 Fourth Amendment case addressing cell-phone searches, the majority recognized that while “[m]ost people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read,” a cell phone can store all of these things. With these comments, the Court observed that free expression often relies on privacy, and implied that absent privacy protections, people may conform in their choice of reading material, their political affiliations, and ultimately, their speech. In other words, privacy protections often also protect First Amendment rights.

But at the same time, the Court’s recent First Amendment decisions have created additional obstacles for those who seek to draft an American data privacy law.

The United States famously does not have omnibus federal privacy protection. Instead, U.S. privacy law is a patchwork of sectoral protections (like protections for video records, consumer protection at the FTC, state privacy torts, and state AG enforcement). Legislators reading Carpenter may conclude that a number of Justices in that case (including Justice Samuel Alito, who explicitly calls for privacy lawmaking in his dissent) understand the need for omnibus data privacy law. But even as the Court in Carpenter seems to point to the need for privacy legislation, its First Amendment decisions in Reed v. Gilbert and NIFLA v. Becerra threaten to tie legislators’ hands.

Reed treats content-based regulation with suspicion; Becerra does the same with disclosure requirements. In Reed, which addressed a town’s rules for the placement of signs, the Court held that “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” All content-based regulation is subjected to strict scrutiny. Thus, a regulatory scheme that treated Political Signs differently from Temporary Directional Signs was content-based, and subject to strict scrutiny, and because it failed strict scrutiny, unconstitutional.

Becerra, decided this year, limits legislators’ ability to require truthful disclosures. The Court preliminarily enjoined California’s disclosure requirements for crisis pregnancy centers—centers that often pretend to provide abortion services but in practice discourage women from getting abortions. While claiming to be narrow and fact-bound, the majority in Becerra applied Reed’s broad understanding of content-based regulation to disclosure laws. The majority of the Court in Becerra explained that California’s disclosure law was “content-based regulation of speech” because “[b]y compelling individuals to speak a particular message, such notices ‘alte[r] the content of [their] speech.”

Why, in a discussion of data privacy, do I focus on Reed and Becerra and not on an earlier line of cases that directly address privacy laws? Because to an extent many Americans do not realize, data privacy protections are actually about increasing speech, not decreasing it. And at least as enacted elsewhere in the world, the efficacy of data privacy regimes as good policy often depends on being able to calibrate the law differently for different actors or scenarios. The first implicates Becerra on disclosures; the second implicates Reed and content-based analysis.

The Fair Information Practices, which were originally formulated in the United States, are the basis for data privacy laws around the world and are largely built around a concept that should be complimentary to the First Amendment: transparency. Take the EU’s General Data Protection Regulation (GDPR) as an example. Individuals are supposed to be notified when companies obtain their information. They have a right to access their data, and to find out to whom it has been disclosed. They have a right to find out where data has come from. Companies have to explain the purpose of data processing, and how profiling and automated decision-making work. All of these transparency rights and obligations attempt to correct, or at least expose, very real power imbalances between individuals and the companies that profit from their data. The GDPR is a disclosure law, as much as it is a right to stop other people from speaking about you.

Today’s paradoxical privacy problem, then, is that even as data privacy regimes rely in large part on increasing, not decreasing, speech by requiring disclosures to users, the Court’s recent First Amendment cases now shut down disclosure as a regulatory tool. Under Becerra’s reasoning, anydisclosure requirement could potentially be characterized as content-based (or, per Justice Stephen Breyer, “[v]irtually every disclosure law requires individuals ‘to speak a particular message’). The GDPR’s requirement that companies disclose the source of their data? Content-based compelled speech. The GDPR’s requirement that companies reveal to individuals the information held about them? A “particular message,” and thus content-based compelled speech.

The majority in Becerra attempts to cabin the impact of its opinion both (1) by pointing to the possibility of regulating speech incidental to regulated conduct (as it alleges was done by the majority in Planned Parenthood v. Casey, a case addressing compelled disclosures by doctors to patients seeking abortions), and (2) by carving out existing disclosure laws (“we do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products”). The problem is that data privacy does not fit squarely within either of these potential exceptions. It regulates information flow, not conduct, or at least conduct that’s nearly inextricable from information flow (though I’ve argued elsewhere that some forms of privacy violations are actually framed in First Amendment law as conduct-like). And because the U.S. lacks omnibus data protection law, privacy doesn’t readily fall into the Court’s attempt to exempt existing consumer protection law. By virtue of its very newness, data privacy may be more heavily scrutinized than other accepted areas of consumer protection.

Justice Stephen Breyer (credit: The Nation)

As Justice  Breyer notes in his dissent, “in suggesting that heightened scrutiny applies to much economic and social legislation,” Becerra jeopardizes legislators’ judgments in areas long left to legislative discretion. Reedcompounds this problem.Some kinds of information, and some behaviors, create greater privacy harms than others. For example, the GDPR, like many American privacy laws, puts in place added protections for “special categories” of data—or what we would call “sensitive information.” Is this content-based discrimination? Does it apply “to particular speech because of the topic discussed?” If so, this would potentially implicate even our current sectoral approach to privacy, not to mention hundreds of behavior-or-information-type-specific state privacy laws. The GDPR also, in many places, distinguishes between categories of companies. Take, for example, the GDPR’s derogation for small and medium-sized enterprises, which are subject to less onerous record-keeping provisions, presumably because smaller companies pose less of a risk of inflicting privacy harms. A government may also want to create an exception to, or less onerous version of, privacy law for smaller companies as a matter of innovation or competition policy, to encourage the growth of startups. Under Reed —and its predecessor, Sorrell v. IMS — identifying particular topics or speakers, or categories of information flow, could give rise to a challenge of regulation as content-based or even viewpoint-based. On paper at least, as Justice Elena Kagan noted in her concurrence, Reed’s broad take on content-based regulation “cast[s] a constitutional pall on reasonable regulations” and puts in place judicial second-guessing of matters that legislatures are likely institutionally better situated to assess.

One potential loophole, or at least limiting principle, to explore is Justice Samuel Alito’s strangely confident conviction in his concurrence, joined by both Justice Sonia Sotomayor and Justice Anthony Kennedy, that “Rules imposing time restrictions on signs advertising a one-time event” would not be considered content-based. This suggests that it may be possible for legislators to continue to name things in information-related legislation, when the restriction is the kind of restriction (e.g. time place and manner) that the First Amendment allows. But how to line-draw between a law that imposes temporal restrictions on “signs advertising a one-time event” and a law that restricts, in other ways, “Temporary Direction Signs” is frankly beyond me.

Thus legislators wanting to write—or in the case of California, that have recently written and passed—data privacy law may find themselves stuck between Reed and a hard place. To some extent, this can be understood as one example of what some have described as the Lochnerization of the First Amendment: its use for deregulatory purposes. But in the context of privacy, things are perhaps uniquely complicated. Speech values fall squarely on both sides. By regulating speech to protect privacy, you both restrict and protect speech. As the Court noted in Bartnicki v. Vopper, “the fear of public disclosure of private conversations might well have a chilling effect on private speech. . . . In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively.” And as the Court has increasingly recognized in its Fourth Amendment jurisprudence, personal information beyond communicative content—such as location data, or reading material or pictures stored on a cell phone—can implicate First Amendment concerns as well, by revealing your associations, your political affiliations, your opinions, your innermost thoughts.

In some ways, Carpenter and other cases move the United States closer to Europe on privacy. There is increasing convergence on what counts as sensitive information: the GDPR includes location data in its definition of “personal data;” and the Court in both Jones and Carpenter recognized an expectation of privacy in publicly disclosed location information. The Court in Carpenter continued a recent theme in Fourth Amendment jurisprudence of referring to what might be understood as First Amendment harms; the GDPR, too, addresses speech-related privacy. Even more significantly, Carpenter begins to undermine a central premise of U.S. privacy law: that you don’t have an expectation of privacy in information you have shared. This suggests that privacy protections might travel with private information, and pop up later in information flows—in other words, that a data privacy model may now be more palatable in the United States. And a disclosure-based privacy law targeting third parties (data brokers) is exactly what California recently passed.

But the First Amendment, once again, may be the context that ultimately defines, through constraints, American privacy law. Determining how to navigate the roadblocks of the Court’s recent First Amendment jurisprudence may—even more than legislative inertia—be the central problem U.S. data privacy now faces.

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FAN 200 (First Amendment News) Sarah C. Haan, “Facebook and the Identity Business”

Sarah C. Haan is an Associate Professor of Law at Washington and Lee School of Law.  Professor Haan writes about corporate political speech and disclosure. Her most recent article is “The Post-Truth First Amendment,” forthcoming in the Indiana Law Journal.

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Facebook revealed in September 2017 that Russian-linked groups had waged a disinformation campaign on its platform to influence the 2016 election. The news caused public outcry and led to a series of self-regulating responses from Facebook and other social media companies.  In a new work-in-progress, I will examine Facebook’s regulation of political speech and, more broadly, what it means for political discourse to be regulated through private ordering by a global, profit-seeking, public company. My conclusions are different from those of some other scholars, in part because I give sharp focus to Facebook as a business actor.

Both before and after the revelation about Russian disinformation, public statements by Facebook spokespeople and its CEO, Mark Zuckerberg, have invoked a commitment to “basic principles of free speech.”  Here is a recent example:

This tweet suggests that Facebook seeks to uphold “basic principles of free speech.” The company’s offhand speech is full of such references to “free speech” and “freedom of expression,” but you won’t find those terms in Facebook’s securities filings, its Community Standards, or in the sworn testimony of company executives before Congress. Kate Klonick has argued that to the extent that platforms like Facebook moderate content, they rely on a foundation in American free speech norms. But what, precisely, do Facebook’s executives think that “free speech” means?

Speaker Discrimination

Professor Sarah C. Haan

I will argue that although most scholarly attention has focused on Facebook’s regulation of content, in fact Facebook’s regulation of political speech relies heavily on speaker discrimination. The company regulates content, reluctantly, at the margins; it plainly prefers to regulate identity. It does this by distinguishing between “authentic” and “inauthentic” user identity. Facebook allows speakers to post nearly anything if they present an “authentic” identity, but completely prohibits the speech of “inauthentic” speakers. As Sheryl Sandberg has admitted publicly, virtually none of the offending Russian content would have violated Facebook’s rules if it had been published by an “authentic” speaker.

Facebook explains:

Authenticity is the cornerstone of our community. We believe that people are more accountable for their statements and actions when they use their authentic identities. That’s why we require people to connect on Facebook using the name they go by in everyday life.

There might be another reason, too.

Facebook’s business model focuses on the sale of advertising. Although the company describes its “mission” differently, its business purpose is to profit from selling ads. It is this business model that justifies a preference for regulating identity over content.

Facebook needs to know who its users are for at least two reasons. First, it needs to be able to tell an advertiser how many unique individuals its advertising can reach. Thus, under Facebook’s rules, it is a violation to create multiple accounts or to share accounts, ensuring that each human user has just one account.

Second, Facebook needs to know who you are so that its customization and microtargeting features will work. Those features set Facebook apart from its competitors and justify its ad revenue. This explains why, for example, the company refuses to prohibit false content (“fake news”), yet prohibits the use of a “false date of birth” as an aspect of identity.  As part of your expressive identity, you may feelyounger than you are, but Facebook prohibits you from actually identifyingas a younger person. Your Facebook identity is what distinguishes you from other ad targets.

The public may have wrongly concluded that Facebook’s authentic/inauthentic rules were designed specifically for the purpose of culling foreign propagandists from its platform. This is not so. Since it went public in 2012—long before Russian agents sought to influence the 2016 election—the company’s filings with the U.S. Securities and Exchange Commission consistently have discussed “authentic identity” as a business policy linked to user metrics. Facebook’s business risks associated with user identity go well beyond concerns about electoral integrity.

Mark Zuckerberg

When Facebook determines that a speaker is “inauthentic,” it shuts down the speaker’s account, removes all traces of its speech from Facebook, and prevents the speaker from engaging in future speech on Facebook.

On May 22, Mark Zuckerberg testified to the European Parliamentthat Facebook shut down about 580 million fake accounts in the first quarter of 2018—nearly six million fake accounts per day. Perhaps the scale of foreign electoral interference around the world is so vast that only algorithmic identity licensing can save us.  I am skeptical.

Two additional things are worth noting about Facebook’s identity-based speech regime.

Identity Verification

First, since April, Facebook has doubled down on identity policing, employing identity licensing in a way that, I will argue, is a form of prior restraint. Under new rules, which are already shaping political discourse about the 2018 midterm elections, an individual in the U.S. who wants to use Facebook’s paid tools to communicate about “national issues of public importance” must verify his or her identity ex anteby submitting private information, such as passport, driver’s license and Social Security information, to the company for approval. In a second step, Facebook mails a special code to the individual at a physical address in the U.S., and this must be input into the verification system to confirm that Facebook has that person’s working address.

In May, Facebook clarified that it would apply its identity verification rules to all publishers of paid content, including news publishers. In other words, news outlets that use Facebook’s paid tools to boost content must go through identity verification, and must also label the content with a “paid for by” label. This, of course, represents a clear break between Facebook’s notion of “free speech” and recognized press freedoms in the First Amendment canon. Global media groups have called on Facebook to exempt news publishers from the new rules, but Facebook has so far refused. The company’s speaker discrimination does not go so far as to discriminate between the press and other speakers, even though our Constitution takes this for granted.

In the past few years, Facebook has acquired a number of companies that specialize in biometric identity verification technology, suggesting that Facebook is at least leaving open the possibility of pursuing identity verification as a stand-alone product or feature.  The tech industry press occasionally suggests that Facebook’s end game may be to monetize identity itself. In other words, Facebook’s choice to regulate political speech primarily through identity licensing and verification may be driven, not by “free speech” or democracy concerns at all, but rather by its desire to pursue identity verification as a business opportunity.

No More Pseudonyms

Second, Facebook’s authentic/inauthentic identity rules conflate two important types of identity—false identity and anonymous identity—treating them identically because this is convenient for Facebook’s business. False identity means pretending to be someone you’re not. The Mueller Indictment alleged that Russian actors adopted false identity on Facebook and other social media platforms in order to trick people into thinking they were U.S. citizens. If true, this was a crime.

Anonymous identity is something else. Americans have traditionally used anonymous speech to express unpopular political views; The Federalist Papers, for example, were originally published by Alexander Hamilton, John Jay, and James Madison under a pseudonym, Publius. Had they attempted such a trick in 2018 on Facebook, the company would have faulted them for “inauthentic behavior” and restricted their speech. Facebook’s choice to prohibit speech, including political speech, from individuals who choose anonymity (but do not claim false identities) represents another important break between the company’s concept of “free speech” and the First Amendment’s.

Although Silicon Valley tech companies often embody a libertarian spirit—and Facebook’s resistance to policing content or to distinguishing between the press and other speakers seems consistent with that view—the company’s decision to prohibit both false identity and anonymous identity is decidedly notlibertarian. The libertarian view is that speech should be evaluated purely on its merits. A regulatory regime that must authorize your identity before it lets you speak shares little in common with a philosophy that emphasizes freedom and individuality.

* * *

In Citizens United v. FEC, the Supreme Court observed that speaker-based distinctions are often a form of content control. It asserted that the State may not “deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.” Although scholars were quick to point out that Justice Kennedy’s opinion overstated the First Amendment’s hostility to speaker-based discrimination, these two points resonate when we consider how Facebook is regulating political discourse primarily through identity.  In my view, the issues don’t come fully into focus until we consider Facebook’s business motives.

Even if Facebook eventually loses ground to other speech-regulating competitors, these issues of private ordering are not going away.

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FAN 199.12 (First Amendment News) Oklahoma L. Rev. Symposium: “Falsehoods, Fake News, and the First Amendment”

The currtent issue of the Oklahoma Law Review has an impressive lineup of contributors commenting on a timely issue.  The symposium is titlled “Falsehoods, Fake News, and the First Amendment.”

Editor’s Introduction
Mitchell B. Bryant

Panel 1: Falsehoods and the First Amendment

Panel 2: Election Lies

Panel 3: The Brave New World of Free Speech

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FAN 199.11 (First Amendment News) Supreme Court Rejects Stay in Crossroads Campaign Disclosure Case

This from Professor Richard Hasen over at the Election Law Blog:

“With no noted dissents, the Supreme Court has turned down Crossroad GPS’s request for emergency relief from an order that will require disclosure of more of its donors who are contributing money to influence federal elections.”

“As I wrote last week, ‘With 4 Justices strongly in favor of disclosure on the Court, I would guess that this results in an eventual denial of the stay, either by a majority vote or a 4-4 split (which keeps the lower court decision in place), unless this is held long enough for Judge Kavanaugh to join the Court.’ . . .”

Continued here.

 

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FAN 199.10 (First Amendment News) Prof. Hasen Weighs in on Fundraising Campaign Threat to Senator Collins’ Election Bid

Senator Susan Collins (Photographer: Pete Marovich/Bloomberg via Getty Images)

Over at Slate, Professor Richard Hasen has just weighed in on the controversy circling around a campaign to raise money to influence Senator Susan Collins’ (R-ME) vote in the Judge Brett Kavanaugh confirmation matter. Here are a few excerpts:

“On Monday, Sen. Susan Collins accused political opponents of Judge Brett Kavanaugh of attempted “bribery.” The charge itself is without any legal merit whatsoever. That complaints about the campaign finance effort came from Collins, Republican election lawyer Cleta Mitchell, and an aide to Senate Majority Leader Mitch McConnell make the episode almost too rich to be believed. Their cries of bribery, illegality, and lack of principle lay bare the bankrupt campaign finance system that Mitchell and McConnell helped create and that Collins has contributed to with previous Supreme Court votes and will supersize with her likely vote to confirm Kavanaugh.”

“Collins labeled as a “bribe” a fundraising plan by two progressive Maine groups, aided by the company Crowdpac, to raise funds for Collins’ eventual opponent in 2020. People are pledging to give money via Crowdpac to that unknown future opponent, but donors will only be charged for the donation if Collins votes “yes” on Kavanaugh’s nomination to the Supreme Court. As of Tuesday night, the groups reported pledged donations of more than $1 million, with a $1.3 million goal. There were more than 39,000 individual pledges ranging from $1 to the maximum allowable donation to a candidate of $2,700.”

“. . . [Senator] Mitchell pointed Newsmax to a federal bribery statute, Title 18, Section 201 of the U.S. Code, which makes it a crime when someone “directly or indirectly gives, offers, or promises anything of value to any public official … for or because of any official act performed or to be performed by such public official.” Mitchell said: ‘These people have conspired to do just that—they are dangling a fairly substantial ‘thing of value’—namely, $1 million to be given or not given to Sen. Collins’ opponent, in exchange for her vote on a specific matter before the Congress.'”

Prof. Richard Hasen (credit: Daily Gazette – Swarthmore)

“But the Maine groups did not violate section 201. The groups are not promising anything of value to Collins to vote in a particular way; nor are they promising anything to Collins’ (now unknown) opponent for the opponent to vote in a certain way. This behavior does not come close to violating the federal bribery statute. . .”

“And what about reading this statute or other federal statutes to prevent what might look like extortion of Collins to vote in a particular way? Well, the Supreme Court has told us in cases like 2010’s Citizens United that large amounts of money sloshing around the system are just fine so long as they are not given by an individual directly to candidates. So long as there is no direct quid pro quo—dollars for political favors—all is fine.”

“And the behavior of the two Maine progressive groups is not unusual, expect for the fact that it is funded by small donors. This is demonstrated easily by looking at the behavior of those shouting bribery the loudest. As Adam Smith noted, although Sen. John Cornyn boosted Collins’ bribery complaints, back in January he was urging the Koch brothers to spend hundreds of millions of dollars to reward the Republican Party for tax cuts benefiting wealthy donors. This came after big donors threatened to withhold money until Republicans got that tax bill passed. That’s closer to Mitchell’s claims of “bribery” than what the Maine groups are doing. Indeed, a 2014 report by . . . law professors Dan Tokaji and Renata Strause found that threats by super PACs to spend against incumbents if they don’t vote the way the super PAC donors want is an everyday Washington occurrence. . . .”

Go here to read the full Hasen op-ed.

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FAN 199.9 (First Amendment News) First Amendment Prohibits ICE from Retaliating Against Immigrant Rights Activists, Legal Groups Argue

NEW YORK (Sept. 11, 2018) — The First Amendment prohibits the government from retaliating against noncitizen activists for peacefully protesting the government’s immigration activities, according to an amicus brief filed by the Knight First Amendment Institute at Columbia University, Georgetown Law’s Institute for Constitutional Advocacy and Protection, and the Roderick & Solange MacArthur Justice Center.“Immigration, including the treatment of noncitizens, has been a touchstone of political debate in the United States,” said Ramya Krishnan, staff attorney at the Knight Institute. “Allowing the government to deport noncitizens for criticizing the nation’s immigration policies would silence crucial voices on a political issue central to the national conversation, and enable a practice that the U.S. government has condemned in other countries around the world.”

Seth Wayne

Ravi Ragbir (credit: NY Daily News)

Ravi Ragbir, a prominent immigrant rights activist, filed suit to prevent U.S. Immigration and Customs Enforcement (ICE) from deporting him to Trinidad & Tobago after 25 years of living in the United States. According to the lawsuit, Ragbir v. Homan, it was Ragbir’s First Amendment-protected activism that motivated ICE to begin removal proceedings. Ragbir seeks an injunction preventing his removal on this basis and preventing governmental retaliation against other noncitizen activists for the exercise of their First Amendment rights. The district court denied the injunction, and that decision is now pending before the U.S. Court of Appeals for the Second Circuit.

“The right to engage in peaceful advocacy and protest lies at the very heart of the First Amendment,” said Seth Wayne, a litigator at Georgetown Law’s Institute for Constitutional Advocacy and Protection. “It’s therefore particularly concerning to see the government retaliating against activists by seeking to remove them from the country as a way to silence them. We’re proud to stand alongside the Knight Institute and the MacArthur Justice Center to defend essential First Amendment rights.”

_______________UPCOMING EVENT_________________

 

 

 

 

 

 

 

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FAN 199.8 (First Amendment News) Now Out — “The Coddling of the American Mind” by Greg Lukianoff & Jonathan Haidt

Co-authored by FIRE President and CEO Greg Lukianoff and New York University professor Jonathan Haidt, the book is a timely investigation into the new “safety culture” on campus and the dangers it poses to free speech, mental health, education, and, ultimately, democracy.

Description: Something has been going wrong on many college campuses in the last few years. Speakers are shouted down. Students and professors say they are walking on eggshells and are afraid to speak honestly. Rates of anxiety, depression, and suicide are rising—on campus as well as nationally. How did this happen?

First Amendment expert Greg Lukianoff and social psychologist Jonathan Haidt show how the new problems on campus have their origins in three terrible ideas that have become increasingly woven into American childhood and education: What doesn’t kill you makes you weaker; always trust your feelings; and life is a battle between good people and evil people. These three Great Untruths contradict basic psychological principles about well-being and ancient wisdom from many cultures.  Embracing these untruths—and the resulting culture of safetyism—interferes with young people’s social, emotional, and intellectual development. It makes it harder for them to become autonomous adults who are able to navigate the bumpy road of life.

Greg Lukianoff

Lukianoff and Haidt investigate the many social trends that have intersected to promote the spread of these untruths. They explore changes in childhood such as the rise of fearful parenting, the decline of unsupervised, child-directed play, and the new world of social media that has engulfed teenagers in the last decade. They examine changes on campus, including the corporatization of universities and the emergence of new ideas about identity and justice. They situate the conflicts on campus within the context of America’s rapidly rising political polarization and dysfunction.

Jonathan Haidt (credit: Dartmouth Review)

This is a book for anyone who is confused by what is happening on college campuses today, or has children, or is concerned about the growing inability of Americans to live, work, and cooperate across party lines.

Early Reviews:

  • “[A] disturbing and comprehensive analysis of recent campus trends. … Lukianoff and Haidt notice something unprecedented and … frightening … .” — The New York Times Book Review
  • “Their advice is sound. Their book is excellent. Liberal parents, in particular, should read it.” — Financial Times
  • “The speed with which campus life has changed for the worse is one of the most important points made by Greg Lukianoff and Jonathan Haidt in this important if disturbing book.” — The Times
  • “Rising intolerance for opposing viewpoints is a challenge not only on college campuses but also in our national political discourse. The future of our democracy requires us to understand what’s happening and why — so that we can find solutions and take action. Reading ‘The Coddling of the American Mind’ is a great place to start.” — Michael Bloomberg, founder of Bloomberg LP and Bloomberg Philanthropies, and 108th mayor of New York City

 Podcast — Nico Perrino interviews Greg Lukianoff re the book: go here

—- On Judge Kavanaugh & Campaign Finance Laws —-

Professor Richard Hasen (credit: Zócalo Public Square)

“By the time President Donald Trump runs for re-election in 2020, he might be able to accept unlimited campaign contributions to support his bid, thanks to his nomination of Judge Brett Kavanaugh to the United States Supreme Court. Documents released ahead of Kavanaugh’s confirmation hearings this week that date from his time in George W. Bush’s White House reveal that the judge just might be ready to strike down what’s left of federal law limiting contributions to candidates, as a First Amendment violation. There are two cases heading to the Supreme Court that would allow him to do just that.”

“As court watchers are well aware, the Supreme Court has been chipping away at campaign finance limits for some years now. In the 2010 case of Citizens United v. Federal Election Commission, the Supreme Court held that corporations have a First Amendment right to spend unlimited sums to support or oppose candidates for office if their payments are made independent of candidates’ campaigns. And in a much less famous but equally important 2014 case, McCutcheon v. Federal Election Commission, the same five-justice majority who decided Citizens United made it harder for courts to sustain the constitutionality of laws—aimed at preventing corruption and its appearance—that limit the amount of money that individuals can contribute directly to candidates. As I explained in Slate when Chief Justice Roberts wrote the majority opinion, McCutcheon was a “subtly awful decision” that was also vintage Roberts: It subtly undermined old precedents to set the stage for their eventual overruling.”

“. . . . If, as expected, Judge Brett Kavanaugh joins the court, he could well push it to move more quickly in a way that could eventually cause the downfall of the federal law that limits an individual to contributing no more than $2,700 per election to a candidate for federal office. Kavanaugh worked in the Bush White House when it was looking at the McCain-Feingold law, which Bush eventually signed even while expressing constitutional reservations about parts of it in a signing statement.”

Recently released documents from the time that Kavanaugh was advising Bush on McCain-Feingold show a person seriously skeptical of campaign finance laws’ constitutionality. Kavanaugh expressed deep misgivings about laws that let outside groups spend unlimited sums in elections while limiting how much candidates and parties can raise to respond to such ads. He told another adviser that he saw “serious” First Amendment problems with capping what people can contribute to candidates, adding that “it is possible my 1A views are even purer than yours.” He also noted that while “very few people” thought contribution limits to candidates are unconstitutional, ‘I for one tend to think those limits have constitutional problems.'”

“. . . . Right now pending before the court is a cert petition asking the Supreme Court to review Montana’s campaign contribution limits. The issue in the 9th Circuit case of Lair v. Motl may seem a bit esoteric; it concerns how much evidence of corruption a state must produce to support a campaign contribution limit. But make no mistake: The Lair case, brought by Citizens United brainchild Jim Bopp, builds upon Chief Justice Roberts’ McCutcheon decision to argue for a standard that would lead courts to strike down virtually all contribution limits.”

“The court is also considering petition from opponents of city-level campaign contribution limits in Austin, Texas. Although a 5th Circuit panel upheld Austin’s limits in Zimmerman v. City of Austin, newly confirmed Judge Jim Ho wrote a strong dissent from the entire 5th Circuit’s decision not to rehear the case. Ho, a former clerk of campaign finance law opponent Justice Clarence Thomas, issued a screed arguing that all campaign finance laws violate the First Amendment and people who don’t like big money in politics should simply shrink the size of government so the government doesn’t have a lot of goodies to give away. “

“Neither Lair nor Zimmerman directly call the federal $2,700 campaign finance limit into question, but either or both cases could be the vehicle to create a precedent that would compel federal courts to strike down the $2,700 limit. It could even happen before the 2020 election. And because this is a constitutional ruling, there would be precious little that Congress could do about it (not that Mitch McConnell, who has helped engineer these events, from supporting the relevant lawsuits to blocking Merrick Garland and shoving Kavanaugh through the Senate without a full document release, would want to do anything but pop open a bottle of Champagne)….”

Can Free Speech Be Progressive? — The Dialogue Continues

Professor Michael Seidman (credit: Book TV)

Professor Michael Seidan’s essay, “Can Free Speech Be Progressive?,” has yet to appear in the Columbia Law Review. Even so, it continues to garner interest (450+ downlaods on SSRN).  Following an online symposium on the essay hosted by First Amendment Watch and First Amendment News comes an upcmoing event on the essay hosted by the Cato Institutute in Washington D.C.

→ Date & Time: September 11, 2018 12:00 p.m. to 1:30 p.m. Hayek Auditorium, Cato Institute

Featuring Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center, Robert F. Bauer, Professor of Practice and Distinguished Scholar in Residence, New York University School of Law, and Ronald K. L. Collins, Harold S. Shefelman Scholar, University of Washington School of Law.

→ Moderated by John Samples, Vice President, Cato Institute

Descrition: For much of the 21st century, those who identified themselves as left of center were the strongest proponents of freedom of speech. They believed in the principle, and they thought that free speech benefited civil rights and labor activists—not to mention radicals seeking fundamental change. Conservatives, they thought, would always oppose free speech because of its threat to the status quo. Beginning in the late 1960s, some spoke of free speech as “repressive tolerance” that precluded radical changes. Later, as courts connected free speech to campaign finance, some on the left argued that the First Amendment served corporate interests, not emancipation of the oppressed. Professor Michael Seidman has renewed this debate with a provocative paper denying that free speech in the American context can be progressive. Please join us for an intriguing debate about the future of free speech, a debate that matters for everyone at all points on the political spectrum.

You can watch it live online at www.cato.org/live and join the conversation on Twitter using #Cato1A.

_______________New Podcast_________________

We enter the early modern age with an expert opinion featuring Teresa Bejan, associate professor at Oriel College, Oxford University and author of “Mere Civility: Disagreement and the Limits of Toleration.” In this episode, Jacob and Teresa will discuss political thought on tolerance and the limits of religious speech in early modern England and colonial America.

Professor Teresa Bejan

The episode investigates the writings of intellectual rock stars — John Milton,  Thomas Hobbes, and John Locke and the less famous but hugely relevant Roger Williams.

Among the topics discussed are: Milton’s “Areopagitica” Early colonial religious “hate speech” laws Why Hobbes found “the mere fact of disagreement offensive” The origin, development, and limits of Lockean tolerance Williams’s combination of fundamentalist evangelical intolerance and free speech fundamentalism Why political theory and practice of the 17th century is relevant to modern day controversies on free speech.

Bejan is an Associate Professor of Political Theory in the Department of Politics and International Relations at the University of Oxford and a Fellow of Oriel College.

_______________First Amendment Teachers’ Guides_________________

Over at First Amendment Watch they’ve posted several First Amendment teachers’ guides:

First Amendment Watch will offer a series of Teacher Guides to help educators both at a high school and college level teach important First Amendment cases and concepts. The guides will also support teaching First Amendment history and the defense of a free press by James Madison and other writers throughout history. This is critical at a time when few Americans can name the five freedoms guaranteed by the First Amendment according to the most recent “State of the First Amendment” survey by the Freedom Forum Institute.

_______________New Article_________________

Abstract — This Note assesses First Amendment freedom of speech claims with regard to online civil rights testing. Transactions that have conventionally occurred in person are now more often completed online, and providers transacting online have been increasingly using algo­rithms that synthe­size users’ data. While these algorithms are helpful tools, they may also be yielding discriminatory results, whether inten­tionally or unintentionally.

In order to test whether such algorithms are discriminating, civil rights testers and researchers have developed various online auditing methods. Two methods in particular, the “sock puppet” audit and the “scraping” audit, have been considered especially viable in de­tecting discrimination. In a sock puppet audit, a tester acts as different bona fide patrons of various demographic backgrounds to test whether an algorithm returns disparate results. In a “scraping” audit, the tester creates bots that act as different individuals and then issue repeated queries to an algorithm and record the various responses received.

While these methods are promising, they currently violate many online providers’ terms of service. Further, due to judicial interpretations of the Computer Fraud and Abuse Act (CFAA) as proscribing violations of a web­site’s terms of service, engaging in these testing methods could give rise to criminal liability.

This Note argues that, in light of precedent related to protected conduct, false speech, investigative journalism, and the tradition of testers in civil rights enforcement, the First Amendment’s protections can and should extend to civil rights testing. Therefore, the CFAA, inso­far as it is applied to civil rights testers engaging in online testing activity, infringes upon the First Amendment by criminalizing constitutionally protected conduct.

Last FAN # 199.7ACLU Targets Panhandling Laws Across the Nation