“The same information revolution that brought us Netflix, podcasts and the knowledge of the world in our smartphone-gripping hands has also undermined American democracy.”
Those were the opening words of a New York Times op-ed written by Professor Richard Hasen earlier this week. Hasen is the Chancellor’s Professor of Law and Political Science at the University of California, Irvine, co-director of the Fair Elections and Free Speech Center, publisher of the much noticed Election Law blog, and also a frequent guest on cable TV. Yesterday, his latest book was released to the world: “Cheap Speech: How Disinformation Poisons Our Politics―and How to Cure It” (Yale University Press), replete with a blurb by Floyd Abrams.
Here is an abstract of the book:
An informed and practical road map for controlling disinformation, embracing free speech, saving American elections, and protecting democracy.
What can be done consistent with the First Amendment to ensure that American voters can make informed election decisions and hold free elections amid a flood of virally spread disinformation and the collapse of local news reporting? How should American society counter the actions of people like former President Donald J. Trump, who used social media to convince millions of his followers to doubt the integrity of U.S. elections and helped foment a violent insurrection? What can we do to minimize disinformation campaigns aimed at suppressing voter turnout?
With piercing insight into the current debates over free speech, censorship, and Big Tech’s responsibilities, Richard L. Hasen proposes legal and social measures to restore Americans’ access to reliable information on which democracy depends. In an era when quack COVID treatments and bizarre QAnon theories have entered the mainstream, this book explains how to assure both freedom of ideas and a commitment to truth.
- “Professor Rick Hasen, the foremost expert on election law in the country, has written an enormously important book on how American democracy is endangered by the ability to easily disseminate false information over the internet and social media.” — Erwin Chemerinsky
- “Rick Hasen not only details the threats that disinformation, misinformation and manipulation pose to democracy and civil society but offers concrete ideas for ameliorating them. Essential and compelling reading at a critical time in our history.” — Norman Ornstein
Upcoming book events
- March 10, 4 pm PT, National Constitution Center (online event, in conversation with Jeffrey Rosen and others)
- March 11, 9 am PT, Campaign Legal Center (online event, in conversation with Trevor Potter)
- March 15, 5 pm PT, UC Irvine School of Law (online event, in conversation with Henry Weinstein)
- March 23, 5 pm PT, America at the Crossroads (online event, in conversation with Warren Olney)
- March 24, 3 pm PT, Brennan Center for Justice at NYU Law (online event)
- March 29, 3 pm PT, Commonwealth Club (online event, in conversation with Erwin Chemerinsky)
- April 23, time TBA, Los Angeles Times Festival of Books, Los Angeles, CA (live event)
→ Interview with Dahlia Lithwick, Amicus / Slate (March 6, 2022)
→ Richard L. Hasen, “How Supreme Court Radicalism Could Threaten Democracy Itself,” Slate (March 8, 2022)
→ Richard L. Haseen, “Cheap Speech and What It Has Done (to American Democracy),” First Amendment Law Review (2017)
Freeman & Levine on increase in libel suits
- George Freeman & Lee Levine, “An increase in libel suits shows why we need to keep protections for the news media,” The Washington Post (March 9)
Reconsidering Sullivan and relaxing the “actual malice” standard imposed on public officials and public figures who claim they have been defamed would be a terrible mistake. The case was correct when it was decided; it remains equally correct — and at least as necessary — today.
A new report by the Media Law Resource Center (MLRC) underscores why. Gorsuch, in his 2021 call to revisit the case, cited statistics collected by the MLRC that showed a dramatic decline in the number of libel cases that went to trial since the 1980s.
That is correct but misleading. Gorsuch said these statistics confirm that the “actual malice” standard, under which public figures must show that news organizations acted with knowing or reckless disregard for the truth, had made the media all but “immune” from liability.
But Gorsuch’s argument ignores the dramatic decrease in all civil trials over the past several decades. In all civil cases, not just libel suits, trials have largely been replaced by settlements. Such settlements, including in libel cases, can reach many millions of dollars.
For the new report, MLRC collected data from 12 major news media companies about more than 200 libel complaints they collectively received since 2009. That data reveals no evidence that the number of media libel cases has decreased in recent years. Rather, it validates the perception of news media companies and their lawyers that the number of cases has increased. The total cases in just that sample rose from 74 to 115 in the period from 2016 to 2021 compared to the preceding six years. . . .”
Media Law Resource Center’s report on Sullivan and libel suits
Institute for Free Speech’s report on anti-SLAPP statutes
Anti-SLAPP statutes prevent abuse of the legal system by providing additional defenses to those who are sued for exercising their First Amendment rights. The term “SLAPP” is an acronym for strategic lawsuit against public participation.
This report summarizes and evaluates anti-SLAPP statutes in 32 jurisdictions – 31 states and the District of Columbia. (The other 19 states have no functioning anti-SLAPP statute.)
This report begins by explaining the functions of anti-SLAPP statutes. It sketches the structure of a well-designed anti-SLAPP statute; explains the importance and operation of the elements of a statute; includes a brief account of the structure and functions of the Uniform Law Commission’s model anti-SLAPP statute; provides a numerical rating and letter grade for each jurisdiction’s statute, based on evaluations of how well each statute protects First Amendment rights; and recommends a particular improvement to the statutes of states with poor grades. Because such ratings and grades necessarily involve some degree of judgment and subjectivity, this report explains in detail the rationale of those ratings and grades.
Additionally, the report includes an Appendix that provides a plain-English, jurisdiction-by-jurisdiction account of the anti-SLAPP statute in each state and Washington D.C., including both statutory text and some relevant case law.
New scholarly article: Jones & West on ‘disappearing’ press freedoms
- RonNell Andersen Jones & Sonja West, “The Disappearing Freedom of the Press,” University of Utah College of Law Research Paper (Feb. 2022)
At this moment of unprecedented decline of local news and amplified attacks on the American press, attention is turning to the protection the Constitution might provide to journalism and the journalistic function. New signals that at least some Justices of the U.S. Supreme Court might be willing to rethink the core press-protecting precedent in New York Times v. Sullivan has intensified these conversations. But this scholarly dialogue appears to be taking place against a mistaken foundational assumption: that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Despite the First Amendment text specifically referencing it—and despite a Roberts Court trend toward other First Amendment expansiveness—freedom of the press is disappearing from the United States Supreme Court’s lexicon. Although the process has gone largely unnoticed, the concept of a free press has almost entirely vanished at the highest court in the land.
Our individually coded dataset, capturing every paragraph mentioning the press written by all 114 Justices in 235-year history of the Court, shows that in the last half-century the Court’s references to the concept of freedom of the press have dramatically declined. They are now lower than at any other moment since the incorporation of the First Amendment. The jurisprudential desertion of this concept is evident in every quantitative and qualitative measure we analyzed. Press freedom was once a commonly adopted frame, with the Court readily acknowledging it, both on its own and as a co-existing First Amendment right alongside the freedom of speech. Justices of the Court once routinely recognized it—not only in cases focused on the media, but also in cases not involving the press. The data reveal that these practices are a thing of the past. Gone are not only the ringing, positive endorsements of freedom of the press—situating it as valuable, important, or central to democracy—but also the bare acknowledgement of it at all. A close investigation of the patterns of individual Justices reveals not only that there are no true advocates of the right on the current Court, but also that most of the current Justices have rarely, if ever, mentioned it in any context.
The Article addresses both the possible causes and the troubling consequences of this decline. It explores strong evidence contradicting many of the initially appealing explanations for the trend, examining the ways in which the phenomenon is unlikely to be solely a function of the Court’s smaller press-related docket or reliance on settled law in the area. It also examines data on the interrelationships between ideology and acknowledgement of freedom of the press. The Article highlights the ways in which the disappearance of the press–freedom principle at the Court may impede the newly revived effort to invoke the constitution as a tool for preserving the flow of information on matters of public concern.
Brotman on the Ukraine war and free speech
- Stuart N. Brotman, “Ukraine war’s powerful First Amendment lesson” (The Hill)
As Americans, we are witnessing the horror that Russia is inflicting on Ukraine with its bloody invasion that is causing massive devastation and death throughout the country. Ironically, the tragic events abroad also can help us gain a greater appreciation for the democratic values that we enjoy at home — values that Ukraine would like to emulate as it struggles to remain a democratic country.
That’s because the proverbial Iron Curtain has been fortified by Vladimir Putin as a barrier against the Russian people. The populace there now is experiencing an unprecedented news and information crackdown by the government, which is shutting off outside news media and social media outlets or causing them to leave the country. As BBC director-general Tim Davie noted in a statement, “This legislation appears to criminalize the process of independent journalism … It leaves us no other option than to temporarily suspend the work of all BBC News journalists within the Russian Federation while we assess the full implications of this unwelcome development.” Russian citizens who have taken to the streets in protest of Putin’s unwarranted siege also face the prospect of long jail sentences.
Taken together, these measures starkly illustrate that government power can be overwhelming when applied to freedom of speech and freedom of the press.
- Jon Allsop, “The Putin regime obliterates press freedom,” Columbia Journalism Review (March 7)
- “Arizona House Passes Bill That Would Limit Recording of the Police,” First Amendment Watch (March 1)
- “Federal Judge Orders January 6 Lawsuits Against Trump to Move Forward,” First Amendment Watch (Feb. 22)
- Peter Handel, “Attacks on Journalists Are Just One Looming Threat to Press Freedom in the US,” Truthout (Feb. 13)
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
- 303 Creative LLC v. Elenis
- Smith v. United States
- Lundergan v. United States
- Kelly v. Animal Legal Defense Fund
- Edgar et al. v. Haines
- Green v. Pierce County
- Clear Channel Outdoor, LLC v. Raymond
- American Society of Journalists v. Bonta
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- Gilbert v. United States
- Roberson v. United States
- Woods v. Alaska State Employee Association
- 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.
- FAN 329.7: “Special issue: Academic speech — Protected or perilous? Emerson Sykes, ‘Academic freedom for whom?’”