Posts Tagged ‘First Amendment to the United States Constitution’
April 16, 2013
Alexander Tsesis (Loyola University Chicago School of Law) has posted ”Inflammatory Speech: Offense versus Incitement”, Minnesota Law Review, Vol. 97, 2013/Loyola University Chicago School of Law Research Paper No. 2013-006. Here’s the abstract:
The commonly accepted notion that content regulations on speech violate the First Amendment is misleading. In three recent cases – Snyder v. Phelps, Brown v. Entertainment Merchants Ass’n, and United States v. Stevens – the Court made clear that free speech includes the right to express scurrilous, disgusting, and disagreeable ideas. A different set of cases, however, concluded that group defamation, intentional threats, and material support for terrorist organizations are not protected forms of expression. This Article seeks to make sense of this doctrinal dichotomy and to develop clearer guidelines for regulating incitements that are posted on the Internet and in public areas.
Many leading First Amendment scholars regard the Supreme Court’s jurisprudence on outrageous and inciting expressions to be inconsistent. These academic authors often adopt a libertarian theory of the Free Speech Clause. They generally agree with cases that strike limits on offensive statements but disregard, or outright ignore, those that uphold restrictions on threats and defamations made in the absence of any imminent threat of harm. This Article demonstrates that opponents of incitement regulations fail to differentiate policies that protect public safety from those that silence outrageous but benign expressions.
I propose a relatively straightforward method for evaluating the constitutionality of incitement laws. The mens rea of a speaker is key to judicial determinations about whether true threats, group defamation, and material support for terrorists are actionable or constitutionally protected. This Article parses the Court’s analysis of unprotected incitement that poses a threat to public safety. A small but significant group of decisions belies the libertarian claim that incitement is constitutionally protected. My proposal will undoubtedly be controversial because the method I propose would augment juries’ and judges’ authority to assess the context within which threatening statements are made and qualify the relevance of the canonic imminent threat of harm doctrine.
Download a pdf copy of the article via SSRN here.
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Tags:First Amendment, First Amendment to the United States Constitution, Freedom of the press, Loyola University Chicago School of Law, Minnesota Law Review, Snyder v. Phelps, United States
Posted in Constitution, Constitutional Rights, First Amendment, free speech, Freedom of expression, freedom of speech, Group Defamation, hate speech, IIED, Imminent Threat of Harm, Incitement, Intentional Infliction of Emotional Distress, Material Support for Terrorism, Outrageous Speech, Protected Speech, Regulation of Speech | Leave a Comment »
March 13, 2013
Matthew Lafferman (JD Candidate, George Mason University – School of Law) has published “Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media”, Santa Clara Computer and High Technology Law Journal, Vol. 29, No. 1, 2012. Here’s the abstract:
In Gertz v. Welch, the Supreme Court expanded First Amendment protections to defamation law by requiring a plaintiff who qualified as a public figure to prove a higher burden of proof to recover for damages under a defamation suit. The Court relied on two major rationales to delineate the Gertz doctrine: public figures “voluntarily exposed themselves to increased risk of injury” and had “significantly greater access to the channels of effective communication.” Applying this doctrine to online media poses challenges, specifically when applied to social media platforms. Many scholars have recognized that social media users have equal access to the same basic media features, rendering the Gertz Court’s access-to the-media rationale inapplicable when applied to social media. A 216% rise in defamation suits against Internet users in the last three years alone, due to the recent discovery that most homeowner’s insurance policies cover libel liability, signals an almost inevitable rise in defamation suits that will eventually force courts to face the challenge of applying the Gertz public figure doctrine to social media.
This Comment offers an approach that reconciles the problems of applying the public figure doctrine to social media. This Comment argues that courts should require defendants to overcome certain initial presumptions by clear and convincing evidence before designating a social media user an involuntary public figure or a general public figure. Moreover, when recommending an approach for courts to identify voluntary activity on a social network for limited-purpose public figures, courts should avoid defining mere access to social media as voluntary activity and instead conclude such access is an extension of an individual’s private life. This approach would allow courts to apply much of the currently existing public figure doctrine to social media and help courts avoid the negative legal and policy consequences of abolishing the doctrine altogether.
A pdf copy of the paper is available for download at SSRN here.
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Tags:First Amendment to the United States Constitution, George Mason University School of Law, Law review, Public Figure, Social media, Supreme Court of the United States, Twitter
Posted in defamation, Defamation Law, Facebook, First Amendment, free speech, Freedom of expression, freedom of speech, Gertz v. Welch, Public Figure, SCOTUS, social media, Twitter, United States, United States Supreme Court | Leave a Comment »
December 19, 2012
Laura E. Little (Temple University – James E. Beasley School of Law) has published “Internet Defamation, Freedom of Expression, and the Lessons of Private International Law for the United States”, European Yearbook of Private International Law, Vol. 14, 2012. The abstract reads:
This article reviews current developments in U.S. conflict of laws doctrine pertaining to transnational internet defamation cases, including personal jurisdiction, choice of law, and recognition of judgments. To resolve personal jurisdiction and choice of law issues in internet defamation cases, U.S. courts have adapted rules from the non-internet context with relative ease. Reported cases tend to concern domestic internet disputes between U.S. entities, with few plaintiffs attracted to U.S. courts for the purpose of litigating cross-border defamation claims. Although the U.S. serves as a magnet jurisdiction for many types of litigation, two liability-defeating laws render the country inhospitable to defamation claims: (1) the U.S. Constitution’s First Amendment speech protections and (2) a statute affording immunity to internet “providers or users” for information “provided by another content provider.” Perhaps because of these provisions litigants are largely inspired to go elsewhere. The resulting libel tourism has prompted important U.S. developments pertaining to enforcement and recognition of foreign defamation judgments. Thus, for conflict of laws matters pertaining to internet defamation, it is judgments law that reflects the greatest activity and most profound change.
After reviewing personal jurisdiction and choice of law trends, this article describes legal developments pertaining to internet defamation judgments. The article critiques lawmakers’ adherence to First Amendment exceptionalism in regulating internet defamation judgments and identifies flaws reflected in state libel tourism statutes and the federal libel tourism statute, the SPEECH act of 2010.
Download the article via SSRN here.
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Tags:Conflict of Laws, Defamation, First Amendment to the United States Constitution, Freedom of speech, International law, Jurisdiction, United States
Posted in choice of forum, choice of law, conflict of laws, cyberlibel, defamation, Defamation Law, enforcement, First Amendment, foreign judgments, foreign plaintiffs, international law, internet, internet defamation, internet jurisdiction, internet law, libel, Libel Chill, Libel Tourism, libel tourist, personal jurisdiction, private international law, public policy, SPEECH Act | Leave a Comment »
October 31, 2012
First Amendment attorney Marc Randazza provides a forensic demonstration on how a real "take down lawyer" handles an online scam artist who is impersonating a lawyer and extorting his victims for a fee. See also, Marc's follow-up posts:
isanybodydown.com responds! ,
More on operation "involuntary porn" and
Still more on isanybodydown.com
I also highly recommend Ken @ Popehat's companion post:
"The Takedown Lawyer": Let's Help Marc Randazza Investigate A Scammer, Shall We?
Tags:Copyright, First Amendment to the United States Constitution, Law, Lawyer, Marc Randazza, New York, Plaintiff
Posted in extortion, Marc Randazza, privacy, social media | Leave a Comment »
March 15, 2012
- Marc Randazza
Marc Randazza.
The name is familiar to many within the legal profession and the general public.
Marc Randazza’s stellar reputation as a leading First Amendment attorney and iconoclast is richly deserved. As the principal of the Randazza Legal Group, his credentials are impeccable. There are few lawyers like Marc Randazza who can garner such a deep and abiding respect from his peers, while striking fear and loathing in the hollow, cavernous, shrivelled hearts of censurious asshats, copyright trolls and Quislings of free speech.
I cannot say that Marc Randazza is a friend of mine. We have never met and only exchanged a few emails. I can say, without reservation, that it is my singular honour and distinct privilege to have Marc Randazza as my lawyer in the infamous Rakofsky v. The Internet litigation.
Don’t believe me? Don’t take my word for it. Here’s what other blawgers are saying about Marc Randazza:
You’ll also likely notice that
Marc Randazza’s blog,
The Legal Satyricon, is on my blog roll (side bar). Read it. You’ll not only learn something new and important, you will also be entertained and probably offended. I said read it. Go there now. What are you waiting for?
“…America isn’t easy. America is advanced citizenship. You gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country can’t just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest. Show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the “land of the free”…”
~President Andrew Shepherd (Michael Douglas)
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Tags:Copyright, Copyright troll, First Amendment to the United States Constitution, Keith Lee, Lawyer, Legal Satyricon, Marc Randazza, Righthaven, United States
Posted in Marc Randazza | 6 Comments »
Antonin I. Pribetic
