Over at the Knight First Amendment Institute, the people who brought you Knight First Amendment Institute v. Trump are now doing yet more cutting-edge work, this by way of a proposal for legal protection for certain research and newsgathering projects focused on platforms.
Social media platforms influence public discourse in profound ways. Billions of users worldwide and hundreds of millions in the United States rely on the platforms to connect with each other as well as with businesses, advocacy organizations, and governments. They depend on the platforms for news, including news about politics, political candidates, and elections. Through their business practices, policies, and design decisions, the platforms influence how we engage with one another and with the communities around us, with far-reaching implications for society. Yet even the social media companies themselves do not fully understand this influence. It is vital that the public understand better how the platforms are shaping public discourse—what relationships they encourage or discourage, what information they amplify or suppress, and what communities they bring together or pull apart.
Digital journalism and research are crucial to this process. Many of the most important stories written about the social media platforms have relied on basic tools of digital investigation.
[. . .]
Unfortunately, many platforms ban tools that are necessary to this kind of journalism and research—tools including the automated collection of public information and the creation of research accounts. Journalists and researchers who use these tools in violation of the platforms’ terms of service risk serious consequences. Their accounts may be suspended or disabled. They risk legal liability for breach of contract. And they face potential civil and criminal liability under the Computer Fraud and Abuse Act, which the Department of Justice and some platforms have in the past interpreted to prohibit certain violations of a website’s terms of service. The threat of liability has had a significant chilling effect.
[. . .]
We need a new approach. After documenting the legal risks that reporters and journalists face in studying the platforms, this white paper proposes a legislative safe harbor that would give legal protection to certain newsgathering and research projects focused on the platforms, so long as the projects respect the privacy of the platforms’ users and the integrity of the platforms’ services. The safe harbor is limited by design, and its adoption would not obviate the need for other reforms—including reforms relating to platform transparency.
Beyond the introduction sketched above, the main topics of the policy paper are:
II. The Importance of Protecting Independent Platform Research
III. Why Disclosure by the Platforms Is Not Sufficient
IV. Independent Platform Research: A minefield of liability
V. Protecting Privacy
VI. A Legislative Fix: A safe harbor for research and journalism
The authors propose a bill, the main section of which provides:
SEC. 3. Establishing a safe harbor for journalism and research on the social media platforms
(a) No civil claim will lie, nor will any criminal liability accrue, against any person for collecting covered information as part of a newsgathering or research project on a platform, so long as—
(1) The information is collected through a covered method of digital investigation;
(2) The purpose of the project is to inform the general public about matters of public concern;
(3) With respect to information that is collected through a covered method of digital investigation—
(A) the information is not used except to inform the general public about a matter of public concern;
(B) the person takes reasonable measures to protect the privacy of the platform’s users; and
(C) the information is not provided to, used to facilitate surveillance by, or used to provide any other service to a government entity.
(4) With respect to the creation and use of a research account, the person takes reasonable measures to avoid misleading the platform’s users; and
(5) The project does not materially burden the technical operation of the platform.
(b) No later than 180 days after the date of the enactment of this Act, the Commission shall promulgate regulations under section 553 of title 5—
(1) Defining “covered method of digital investigation,” which phrase, as defined, must encompass—
(A) the collection of data from a platform through automated means;
(B) the collection of data voluntarily donated by users, including through a browser extension or plug-in; and
(C) the creation or use of research accounts.
(2) Defining “covered information,” which phrase, as defined, must encompass—
(A) publicly available information, except that such term should not exclude data merely because an individual must log into an account in order to see it;
(B) information about ads shown on the platform, including the ads themselves, the advertiser’s name and disclosure string, and information the platform provides to users about how an ad was targeted;
(C) any other category of information the collection of which the FTC determines will not unduly burden user privacy.
(3) Defining “reasonable measures to protect the privacy of the platform’s users” under subsection (a)(3)(B) of this section, including by specifying—
(A) what measures must be taken to prevent the theft and accidental disclosure of any data collected;
(B) what measures must be taken to ensure that the data at issue is not used except to inform the general public about matters of public concern; and
(C) what measures must be taken to restrict the publication or other disclosure of any data that would readily identify a user without the user’s consent, except when such a user is a public official or public figure;
(4) Defining “reasonable measures to avoid misleading the platform’s users” under subsection (a)(4) of this section.
(5) Defining “materially burden the technical operation of a platform” under subsection (a)(5).
First Amendment Watch and FIRE to co-host virtual panel on new book, 'Free Speech: A History from Socrates to Social Media'
Join First Amendment Watch and Foundation for Individual Rights in Education (FIRE) for a virtual taping of the So to Speak Podcast with Jacob Mchangama, author of “Free Speech: A History from Socrates to Social Media” in conversation with Greg Lukianoff, Professor Stephen D. Solomon, Sarah McLaughlin, and host Nico Perrino. Panelists will be discussing how lessons from free speech movements throughout world history can help us overcome today’s divisions over the value of free speech, and how conflicts between egalitarian and elitist schools of free speech thought are still with us in the digital age.
→ The virtual taping will take place on Feb. 2 at 6 PM Eastern Time. Registration is required.
Hailed as the “first freedom,” free speech is the bedrock of democracy. But it is a challenging principle, subject to erosion in times of upheaval. Today, in democracies and authoritarian states around the world, it is on the retreat.
In Free Speech, Jacob Mchangama traces the riveting legal, political, and cultural history of this idea. Through captivating stories of free speech’s many defenders—from the ancient Athenian orator Demosthenes and the ninth-century freethinker al-Rāzī, to the anti-lynching crusader, Ida B. Wells and modern-day digital activists—Mchangama reveals how the free exchange of ideas underlies all intellectual achievement and has enabled the advancement of both freedom and equality worldwide. Yet the desire to restrict speech, too, is a constant, and he explores how even its champions can be led down this path when the rise of new and contrarian voices challenge power and privilege of all stripes.
Meticulously researched and deeply humane, Free Speech demonstrates how much we have gained from this principle—and how much we stand to lose without it.
Winners must have a valid U.S. mailing address to receive their copy.
In light of what appears to be a spike in defamation actions against public figures and media groups, I compiled a list of some recent news items on the subject. — rklc
- "Smartmatic Sues MyPillow CEO Mike Lindell for Defamation," First Amendment Watch (Jan. 24)
- Oliver Darcy, "Why the Sarah Palin v. New York Times trial will be an 'excruciating experience' for the paper," CNN Business (Jan. 24)
- A.J. McDougall, "Cardi B Awarded $1.25M in Defamation Suit Against ‘Malicious’ YouTuber," The Daily Beast (Jan. 24)
- Jeremy W. Peters, "Sarah Palin v. New York Times Spotlights Push to Loosen Libel Law," The New York Times (Jan. 23)
- Erik Wemple, "Sarah Palin v. NYT: Exploring the line between bad journalism and libelous journalism," The Washington Post (Jan. 21)
- Marisa Sarnoff, "Sidney Powell Tries to Dismiss Majed Khalil Defamation Suit," Law & Crime (Jan. 18)
- "Freelance Writer Files $1 Million Defamation Suit Against The Atlantic," First Amendment Watch (Jan. 10)
- Nancy Dillon, "Phoebe Bridgers’ Defamation Accuser Fails in Similar Suit Against ‘SNL’ Actress," Rolling Stone (Jan. 6)
- Staci Zaretsky, "Rudy Giuliani Still In Disbelief That He’s Been Banned From Appearing On ‘Fascist’ Fox News," Above the Law (Dec. 30, 2021)
- Michael Grynbaum, "Judge Says New York Times Can Retain Project Veritas Memos, for Now," The New York Times (Dec. 28, 2021)
- "Georgia Poll Workers Sue Rudy Giuliani, One America News for Defamation," Democracy Now (Dec. 27, 2021)
- Ken Stone, "OAN Is Mocked for Motion to Dismiss Dominion Suit or Shift Case to Colorado," Times of San Diego (Dec. 26, 2021)
- "Judge Allows $1.6 Billion Defamation Suit Against Fox News to Proceed," First Amendment Watch (Dec. 17, 2021)
- Floyd Abrams, "The Supreme Court Faces a Huge Test on Libel Law," The New York Times (Oct. 22, 2021)
- Katelyn Polantz, "Judge allows defamation lawsuits against Sidney Powell, Rudy Giuliani and MyPillow CEO to go forward," CNN (Aug. 11, 2021)
- Tah v. Global Witness Publishing, Inc. (cert. denied Nov. 1, 2021)
- Pace v. Baker-White (cert. denied, Nov. 1, 2021)
- Jessica Roberts & Adam Maksi, “Attacks on the American Press: A Documentary and Reference Guide” (Greenwood, July 31, 2021)
- "Cert. denial opinions of Thomas and Gorsuch in Berisha v. Lawson," First Amendment News (Jul. 7, 2021)
- Eugene Volokh, “Justices Thomas and Gorsuch Criticize New York Times v. Sullivan,” The Volokh Conspiracy (July 2, 2021)
- Eugene Volokh, “Justice Kagan’s Views on New York Times v. Sullivan, as of 1993,” The Volokh Conspiracy (July 2, 2021)
- Jonathan Alder, “Is NYT v. Sullivan the Real Problem with Libel Law? (Updated),” The Volokh Conspiracy (July 2, 2021)
- "Cert petition asks Justices to overrule ‘public figure’ doctrine — relies heavily on 1993 Kagan book review," First Amendment News (June 23, 2021)
- “Jones & West’s empirical study reveals ‘stark deterioration in both the quantity and quality of the Court’s depictions of the press’,” First Amendment News (April 28, 2021)
- Adam Liptak, “The Supreme Court’s Increasingly Dim View of the News Media,” The New York Times (April 19, 2021)
- J. Michael Luttig, "A judge’s astonishing attack on a First Amendment precedent may end up strengthening it instead," The Washington Post (March 25, 2021)
- "Bruce Johnson responds to Judge Laurence Silberman’s attack on NYT v. Sullivan," First Amendment News (March 24, 2021)
- Oliver Darcy, “Voting technology company Smartmatic files $2.7 billion lawsuit against Fox News, Rudy Giuliani and Sidney Powell over ‘disinformation campaign',” CNN (Feb. 4, 2021)
- “The rise of defamation lawsuits by and against public figures,” First Amendment News (Feb. 3, 2021)
- RonNell Andersen Jones & Sonja West, "The U.S. Supreme Court's Characterizations of the Press: An Empirical Study," SSRN (Feb. 2021)
- "More on originalism and the First Amendment, enter Matthew Schafer," First Amendment News (Oct. 7, 2020)
- Levine and Wermiel: “Dubious Doubts and ‘the Central Meaning of the First Amendment’—A Preliminary Reply to Justice Thomas," First Amendment Watch (March 1, 2019)
- "Justice Thomas Targets Sullivan Ruling — a “policy-driven decision masquerading as constitutional law,” First Amendment News (Feb. 20, 2019)
- Abby Rogers, "Justice Scalia ‘Abhors’ The Supreme Court’s 1964 Ruling On Libel," Business Insider (Dec. 4, 2012)
→ Charlie Rose, Antonin Scalia Interview (Nov. 27, 2012)
→ Elena Kagan, "A Libel Story: Sullivan Then and Now," Law and Social Inquiry (1993).
→ Richard A. Epstein, "Was New York Times v. Sullivan Wrong?," University of Chicago Law Review (1986)
New podcast: Gillespie interviews Corn-Revere on new book
- Nike Gillespie, "Bob Corn-Revere: How Today's Censors Hide Behind Science and Psychology," Reason Podcast (Jan. 19)
The history of censorship in the United States is a long and ugly one—and far from over. It's also a deeply ironic tale, with seemingly successful attempts to stamp out unwanted expression ultimately giving way to more and more freedom of speech.
In The Mind of the Censor and the Eye of the Beholder, legendary First Amendment lawyer Robert Corn-Revere documents how attempts by legendary censors such as Anthony Comstock (the head of the New York Society for the Suppression of Vice, whose name became synonymous with priggishness), Fredric Wertham (the communist-friendly psychiatrist whose crusade against comic books changed the publishing industry), and Newton Minow (the sainted FCC chairman who memorably—and incorrectly—denounced television as a "vast wasteland") ended up creating backlashes that undermined their attempts to control what Americans could read, watch, and listen to.
Corn-Revere tells me that although no one cops to being a censor these days, attempts to delegitimate the First Amendment are everywhere around us, especially when it comes to limiting speech in the name of supposedly protecting the feelings of religious, ethnic, and sexual minorities. "If you look at the history of this, you find it is the protection of individuals' speech rights that has made all of the mass movements by minorities and previously marginalized people possible," says Corn-Revere. "There wouldn't have been a gay rights movement or a women's movement. Certainly the civil rights movement was a defining time for protecting the speech of individuals."
Forthcoming book on free speech & the paradox of democracy
- Zac Gershberg & Sean Illing, "The Paradox of Democracy: Free Speech, Open Media, and Perilous Persuasion," (University of Chicago Press, May 4, 2022)
At the heart of democracy lies a contradiction that cannot be resolved, one that has affected free societies since their advent: Though freedom of speech and media has always been a necessary condition of democracy, that very freedom is also its greatest threat. When new forms of communications arrive, they often bolster the practices of democratic politics. But the more accessible the media of a society, the more susceptible that society is to demagoguery, distraction, and spectacle. Tracing the history of media disruption and the various responses to it over time, Zac Gershberg and Sean Illing reveal how these changes have challenged democracy—often with unsettling effects.
The Paradox of Democracy captures the deep connection between communication and political culture, from the ancient art of rhetoric and the revolutionary role of newspapers to liberal broadcast media and the toxic misinformation of the digital public sphere. With clear-eyed analysis, Gershberg and Illing show that our contemporary debates over media, populism, and cancel culture are not too different from democratic cultural experiences of the past. As we grapple with a fast-changing, hyper-digital world, they prove democracy is always perched precipitously on a razor’s edge, now as ever before.
New scholarly article on the poor and the right to petition
- Henry Rose, "Why Do the Poor Not Have a Constitutional Right to File Civil Claims in Court Under Their First Amendment Right to Petition the Government for a Redress of Grievances?," Seattle University Law Review (2021)
Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut, United States v. Kras, and Ortwein v. Schwab—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims. In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from accessing the courts when they were unable to pay court filing fees. The shocking lesson of this triumvirate of Supreme Court cases is that certain poor persons who cannot afford to pay court filing fees can be denied access to the Judicial Branch of government to seek resolution of their civil legal claims. But paying court filing fees, like paying government-imposed fees to vote, should not be a precondition to the exercise of a constitutional right. This Article asserts that these three cases should have recognized that the poor—like all other groups, organizations, and persons—have a First Amendment right to access the courts to seek redress of their grievances, even when they cannot afford to pay court filing fees.
First, Part I of this Article identifies the important role that the Judicial Branch of government plays in the enforcement of the civil legal rights of Americans and traces the development of the First Amendment right to access the courts for this purpose. Part II summarizes typical civil court filing fees and explains how available fee-waiver processes are ineffective. Parts III and IV consider the triumvirate of Supreme Court cases involving poor plaintiffs and asserts that the Court should have considered their rights to access the courts under the First Amendment right to petition the government for redress of grievances. Finally, Part V analogizes to Supreme Court precedent involving the right to vote and asserts that the imposition of fees for pursuing civil litigation, like fees for voting, violates equal protection as an improper precondition to the exercise of a constitutional right.
Former Newseum First Amendment tablet on display at National Constitution Center
- Pat Ralph, "50-ton tablet engraved with First Amendment now on display at National Constitution Center," Philly Voice (Jan. 19)
A massive, marble tablet engraved with the 45 words of the First Amendment is now situated just steps away from where the U.S. Constitution was written and signed almost 235 years ago.
The 50-ton tablet is on display to the public at the National Constitution Center's Grand Hall Overlook, after a year-long installation process was recently completed. The stone engraving can be found along a 100-foot-wide wall in the museum's second-floor atrium that overlooks Independence Mall.
[. . .]
After the Newseum closed in 2019 due to financial issues, the Freedom Forum donated the tablet to the National Constitution Center. Work to remove the tablet from its original location and reconfigure it for its new home took place over the past year.
- Jeff Kosseff, "Washington’s Election Misinformation Bill Demonstrates Dangers of Compromising First Amendment Values," Lawfare (Jan. 25)
- "VICTORY: Collin College to pay thousands to history professor fired for tweets," FIRE (Jan. 25)
- Eugene Volokh, "Policy Excluding Transit Ads That Are "Political," "Controversial, Offensive, Objectionable, or in Poor Taste" Violates First Amendment," The Volokh Conspiracy (Jan. 24)
- Brian Lowry, "'Secrets of Playboy' pulls back the curtain on the dark side of Hugh Hefner's empire," CNN (Jan. 24)
- Philip Bump, "Perhaps Dr. Seuss wasn’t a First Amendment tipping-point after all," The Washington Post (Jan. 19)
2021-2022 SCOTUS term: Free expression & related cases
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Federal Election Commission v. Ted Cruz for Senate
- Shurtleff v. Boston
- Kennedy v. Bremerton School District
- Lundergan v. United States
- Kelly v. Animal Legal Defense Fund
- Roberson v. United States
- Edgar et al. v. Haines
- Woods v. Alaska State Employee Association
- Green v. Pierce County
- 303 Creative LLC v. Elenis
- Clear Channel Outdoor, LLC v. Raymond
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- Lamoureux v. Montana
- Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico
- John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
- Project Veritas Action Fund v. Rollins
- Troesch v. Chicago Teachers Union, et al.
- Dignity Health v. Minton
- Pace v. Baker-White
- Tah v. Global Witness Publishing, Inc.
- American Civil Liberties Union v. U.S.
- Frasier v. Evans (First Amendment and qualified immunity)
- Louisiana v. Hill
- Baisley v. International Association of Machinists and Aerospace Worker
- Crowe v. Oregon State Bar
- Boardman v. Inslee
- Pasadena Republican Club v. Western Justice Center, et al.