Archive for the ‘free speech’ Category

Revenge Is A Link Best Served Cold

October 15, 2013

Engraving by Gustave Doré illustrating the Erinyes, chthonic deities of vengeance and death (via Wikipedia/Wiki Commons)

I have been remiss in not writing about a recent debate in the Blawgosphere regarding the constitutionality of recent anti-revenge porn legislation, spearheaded by Professor Mary Anne Franks of the University of Miami School of Law. Given the theme of this post, I leave it to the reader to “Google it yourself” to find out the historical background to the criminalization of revenge porn movement and mainstream media coverage.

What I’m more interested in for present purposes, is the developing story concerning the lack of “dissenting opinions” and critiques of the Franks Model of Revenge Porn Criminalization, highlighted over at the Law Prawf Collective known as “Concurring Opinions”. Read an interview of Franks on Revenge Porn over at Concurring Opinions here.

Enter Scott Greenfield, the author of Simple Justice who has painstakingly analyzed and critiqued the legislative model to criminalize revenge porn on a number of levels, specifically, highlighting the criminal law and First Amendment problems inherent in Franks’s model law.  Greenfield writes,

Jorge R. Roig on “Emerging Technologies and Dwindling Speech”

June 7, 2013

Jorge R. Roig (Charleston School of Law) has posted “Emerging Technologies and Dwindling Speech”, University of Pennsylvania Journal of Constitutional Law, Vol. 16, 2013 (Forthcoming).  The abstract reads:

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, reflects a continuing dissatisfaction on the part of both courts and legislatures with the current Supreme Court doctrine on First Amendment coverage. From this discussion, we can also derive some meaningful normative insights regarding the interplay between emerging technologies and First Amendment coverage doctrine. Finally, this article hopes to serve as a stepping stone in a more profound and long term pursuit of a comprehensive theory of constitutional individual rights coverage issues that might serve us well as the future brings unexpected changes in our society.

Download a copy of the paper via SSRN here.

Alexander Tsesis on “Inflammatory Speech: Offense versus Incitement”

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.

Matthew Lafferman, “Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media”

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.

Matthew M. Pagett, “Sticks, Stones, and Cyberspace: On Cyberbullying and the Limits of Student Speech”

January 10, 2013

 Matthew M. Pagett (North Carolina Court of Appeals) has posted “Sticks, Stones, and Cyberspace: On Cyberbullying and the Limits of Student Speech”, UNC School of Government School Law Bulletin 2012/2, December 2012. Here’s the abstract:

This article discusses cyberbullying in public schools and evaluates the pertinent statutory and common law standards. In particular, the article focuses on the relevant North Carolina statutory law and the extent to which school officials may punish students for cyberbullying behavior. The author also reviews the relevant Supreme Court standards as they apply to this particular factual scenario.

 A pdf copy of the article is available for download on SSRN here.

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