Regulation Of Speech Research Articles

Freedom of Expression and Alternatives for Internet Governance: Prospects and Pitfalls

This article dives into the ongoing debate on how to address concerns of personal safety and respect online, as well as consequences for exposure to polarizing and in various ways harmful information, while at the same time safeguarding the democratic essentials of freedom of expression and participation. It does so by examining the issue from a less common angle, namely who governs the Internet and the platforms where much of the toxic material appears. By applying a model of free speech regulation conceptualized by legal scholar Jack Balkin (2018a, 2018b), the article explores different theoretical future scenarios of Internet governance involving three main players, namely governments, private companies, and speakers. The analysis finds that depending on which player is at the forefront, the outcomes from the standpoint of participation and freedom of speech may be drastically different. While there is potential for transformation that can enable more ownership, transparency, and agency for citizens and news media, some potential paths will place ever-increasing control over the interests of users.

FREEDOM OF SPEECH AS A VALUE OF DEMOCRATIC STATE- BUILDING: SECURITY FORMAT

Human rights and freedoms are an essential part of building a democratic state. In turn, freedom of speech is a basic value of a democratic state. At the same time, modern democratic countries, facing terrorist and information threats, becoming information war objects, are forced to adjust the realization legal parameters of the freedom of speech, especially in the media. Variety of law, philosophical and political science publications are devoted to problems of the freedom of speech ensuring in conditions of hybrid and information wars, the permanent terrorist threat, and armed conflicts. This research aims on highlighting the freedom of speech realization problem in current information and hybrid wars, as well as on revealing the features of the relationship between freedom of speech and security measures in democratic states. Nowadays, informational confrontation, information attacks and wars have become the dominant component in the struggle for global leadership. World democracies face the problem of comprehensive freedom of speech implementation on the one hand, and on the other hand - maintaining the safe state existence in conditions of hybrid wars, negative informational effects on public consciousness and spiritual-cultural area of the country. In different countries of the world, the beginning of the XXI century events have clearly shown that by means of social networks, it is possible to carry out information attacks against entire nations in order to destabilize the situation, create an auspicious spiritual and psychological climate for the further manipulative actions, destructive influence on existing political and economic systems, legal, spiritual, cultural and other relations, which ultimately leads to the destabilizing of state, information, political and economic sovereignty of the country. To date, in scientific and expert circles, the main criteria have been developed, whereby it is determined whether a country has become the object of information war and information expansion, which accordingly requires the state to take countermeasures to strengthen national security (informational in particular), freedom of speech regulation. Thus, in all of its aspects, the freedom of speech must be ensured by a democratic state, but at the same time it is necessary to clearly define the boundaries of openness in certain areas (military, national security) for the stable country existence.

The Structure of Strict Scrutiny Review

In Whole Woman’s Health v. Hellerstedt, Justice Thomas criticized existing Supreme Court doctrine regarding the “tiers of scrutiny,” quoting a passage from an earlier Justice Scalia dissent that the “three basic tiers – ‘rational basis,’ intermediate, and strict scrutiny – ‘are no more scientific than their names suggests, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’” 136 S. Ct. 2292, 2327 (2016), quoting United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting). Justice Thomas added, “But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. . . . [M]ore recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights. . . . Meanwhile, the Court selectively applies rational-basis review – under which the question is supposed to be whether ‘any state of facts reasonably may be conceived to justify’ the law – with formidable toughness.” Id., quoting McGowen v. Maryland, 366 U.S. 420, 426 (1961). Despite these concerns, careful attention to the Court’s decisions reveals a predictable and principled structure to the Court’s existing standards of review. Justice Thomas’ criticisms stated in points and above on the “scientific nature” of the standards of review and possible selective application of “rational basis review” are addressed in a separate article entitled, “The Structure of Rational Basis and Reasonableness Review.” Justice Thomas’ criticism in point about the malleability in selecting which standard of review to adopt is addressed in a separate article entitled, “Justifying the Supreme Court’s Standards of Review.” Justice Thomas’ criticism in point regarding selective application of the “higher standards of review” are addressed into two related articles, “The Structure of Intermediate Review” and “The Structure of Strict Scrutiny Review.” All four of these articles are now posted on SSRN and available at http://libguides.stcl.edu/kelsomaterials. This article addresses “The Structure of Strict Scrutiny Review.” Today, there are two versions of strict scrutiny review. There is: (1) “standard” strict scrutiny review used for cases like (a) racial discrimination under the Equal Protection Clause, both in cases involving (i) discrimination against minorities, as in Loving v. Virginia, or in cases of involving (ii) race-based affirmative action, in cases like City of Richmond v. J.A. Croson Co., or (b) content-based regulations of speech in a public forum, in cases like Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board. There is also (2) a “loose” strict scrutiny approach used for cases involving racial redistricting challenges under the Equal Protection Clause in cases like Bush v. Vera. In actual Court decisions, four other kinds of tests have been used, or suggested, by the Court where one of the established versions of strict scrutiny should apply. These four can be viewed as “mutations” of the two kinds of strict scrutiny review proper to apply. These four mutations involve: (1) a “hybrid” kind of intermediate/strict scrutiny review used in cases like Denver Area Educational Telecommunications Consortium v. FCC, which involved regulation of cable television; (2) a “watered-down” kind of strict scrutiny, applied in cases like Fisher v. University of Texas at Austin; (3) suggestion of “extremely limited” possibilities for compelling interests to satisfy strict scrutiny, as in Justice Thomas’ concurrence in Grutter v. Bollinger, a case involving race discrimination under the Equal Protection Clause; and (4) suggestion of a “categorical” approach of unconstitutionally when traditionally strict scrutiny has been applied, such as in Iancu v. Brunetti, a case involving viewpoint discrimination in free speech cases. Part II of this article will discuss the two well-established kinds of strict scrutiny. This discussion will provide detailed treatment of a structured approach to phrasing and applying these two kinds of strict scrutiny tests. Following this discussion, Part III will discuss: (1) the “hybrid” kind of strict scrutiny review. Part IV will address (2) the “watered-down” kind of strict scrutiny review. Part V will discuss (3) the “extremely limited” compelling governmental interests kind of strict scrutiny review. Part VI will discuss (4) adopting a “categorical” approach rather than applying strict scrutiny. Part VII will discuss why the first of these mutated approaches should adopt the loose strict scrutiny of Bush v. Vera, while the last three of these mutations should adopt standard strict scrutiny review. Part VIII will provide a brief conclusion.

The Structure of Rational Basis and Reasonableness Review

The Structure of Rational Basis and Reasonableness Review

Rethinking Copyright's Relationship to the First Amendment

This Article offers a new account of copyright’s relationship to the First Amendment. Until now, discourse about copyright and the First Amendment appears focused on applying a single standard of review. The Supreme Court has effectively taken the position that courts need only apply rational basis First Amendment scrutiny to copyright law. Some scholars have disagreed, arguing that intermediate scrutiny should be applied to all of copyright. By contrast, this Article argues that the proper level of First Amendment scrutiny depends on the type of copyright provision under review. In particular, courts should apply strict scrutiny to the few portions of the Copyright Act that embody viewpoint-based regulation of speech, intermediate scrutiny to the more numerous provisions that employ content-based regulation of speech, and rational basis scrutiny to the Copyright Act’s content-neutral provisions. This suggestion draws inspiration from recent Supreme Court decisions applying strict scrutiny to aspects of trademark law. These cases show that basic free speech principles apply to intellectual property, thereby raising doubt about the wisdom of applying only rational basis First Amendment scrutiny to copyright. The Article uses these principles and insights gained from copyright’s historical relationship to the First Amendment to construct a framework that gives courts the ability to curb the use of copyright as censorship or naked economic giveaway while preserving Congress’ ability to implement appropriately reasoned copyright policies that serve the public interest.

The Law of Free Expression and New Information Technologies: The First Amendment Isn’t Obsolete

Recently the literature on free expression has turned to the question, Should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay examines and critiques Professor Tim Wu’s prominent version of the argument that the development of NIT should lead us to rethink the law of free expression. After laying out the paradigm underlying free expression law, that speech causes harm, the Essay examines two aspects of the argument that the more speech, the more harm, which might lead us to seek a new set of rules that jointly optimize speech and harm. One is that NIT should lead us to alter substantive First Amendment law because NIT lead us to reconsider the general balance we have struck among the values promoted by free expression. Section IV deals with that argument. The second is that NIT affect the mechanisms by which specific categories of speech cause specific harms. That argument calls for a more granular approach. To implement that approach the Essay looks at the mechanisms by which more speech might render the “rules in place” no longer socially optimal. It examines false statements that injure reputation (libel), expression that induces unlawful action (the subject of the traditional law of sedition); sexually explicit expression (obscenity and pornography); false statements that inflict no material harm (“fake news”); and threats (cyberstalking). A final section turns to arguments about the platforms used by NIT – Twitter, Facebook, and the like. (1) The platforms should be subject to the same limitations on speech regulation that apply to the government. These arguments sound in the state-action doctrine rather than in the First Amendment, and I have relatively little to say about them. (2) The platforms can be regulated through the application of antitrust or fiduciary law without violating the First Amendment. I discuss existing First Amendment doctrine about the application of “general” laws to the media and examine some issues that might arise in connection with tinkering with antitrust or fiduciary law as the vehicle for platform regulation. (3) The platforms should be held liable for the utterances they disseminate, holding constant the substantive rules of libel, threats, and the like. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.

Discurso de ódio nas normativas transnacionais de empresas de mídias sociais: Uma abordagem acerca das possibilidades da autorregulação regulada

A sociedade global e as novas tecnologias modificaram a produção, a disseminação e as regulações sobre discursos de ódio, principalmente aqueles expressados on-line. De um lado, as empresas transnacionais de mídias sociais possuem políticas de publicidade com diretrizes para remover conteúdos considerados como discurso de ódio ou expressões semelhantes. De outro, o direito internacional dos direitos humanos, que fornece diretrizes interpretativas para a problemática à luz do direito à liberdade de expressão, emite preocupações sobre como essas normatizações de empresas de mídias sociais são geridas e operacionalizadas. Nesse sentido, o objetivo deste estudo é analisar o panorama das diferentes regulações normativas que recaem sobre o fenômeno do discurso de ódio à luz da perspectiva do pluralismo jurídico. Além disso, a pesquisa investiga se a autorregulação regulada pode ser considerada uma ferramenta estratégica para auxiliar na proteção da liberdade de expressão, e lidar com a complexibilidade das dinâmicas da sociedade global em relação aos discursos de ódio on-line. A metodologia utilizada é de natureza hipotético-dedutiva, com levantamento bibliográfico e documental a respeito dos temas relacionados. Os resultados indicam que a autorregulação regulada pode ser considerada uma ferramenta estratégica para conciliar a dinâmica específica das plataformas digitais de mídias sociais com as regulações do sistema jurídico oficial sobre os temas.
 
 
 Abstract: The global society and new technologies have changed the production, dissemination, and regulation of hate speech, especially those expressed online. On one hand, the advertising policies for transnational social media companies include guidelines for removing hate speech content or similar expressions. From another, the international human rights law has concerns about how these social media company policies are managed and operationalized in relation to the right to freedom of expression. In this sense, the objective of this study is to analyze the panorama of the different normative regulations on hate speech in the light of perspective of legal pluralism. In addition, the study investigates if the regulated self-regulation can be considered a strategic tool to help protect freedom of expression in the complexity of global society dynamics about hate speech online. The methodology used is based on the hypothetical-deductive method, with bibliographic and documentary revision. The results indicate that regulated self-regulation can be considered a strategic tool to conciliate the specific dynamics of social medias platforms and the regulations of the official legal system.
 Keywords: Hate speech; Legal pluralism; Transnational regulations; Social medias; Regulated self-regulation.
 
 
 Recebido em: outubro/2019.
 Aprovado em: agosto/2020.

Overt speech feasibility using continuous functional magnetic resonance imaging: Isolation of areas involved in phonology and prosody.

To avoid motion artifacts, almost all speech-related functional magnetic resonance imagings (fMRIs) are performed covertly to detect language activations. This method may be difficult to execute, especially by patients with brain tumors, and does not allow the identification of phonological areas. Here, we aimed to evaluate overt task feasibility. Thirty-three volunteers participated in this study. They performed two functional sessions of covert and overt generation of a short sentence semantically linked with a word. Three main contrasts were performed: Covert and Overt for the isolation of language-activated areas, and Overt>Covert for the isolation of the motor cortical activation of speech. fMRI data preprocessing was performed with and without unwarping, and with and without regression of movement parameters as confounding variables. All types of results were compared to each other. For the Overt contrast, Dice coefficients showed strong overlap between each pair of types of results: 0.98 for the pair with and without unwarping, and 0.9 for the pair with and without movement parameter regression. The Overt>Covert contrast allowed isolation of motor laryngeal activations with high statistical reliability and revealed the right-lateralized temporal activity related to acoustic feedback. Overt speaking during magnetic resonance imaging induced few artifacts and did not significantly affect the results, allowing the identification of areas involved in primary motor control and prosodic regulation of speech. Unwarping and motion artifact regression in the postprocessing step, seem to not be necessary. Changes in lateralization of cortical activity by overt speech shall be explored before using these tasks for presurgical mapping.

The state, hate speech regulation and sustainable democracy in Africa: a study of Nigeria and Kenya

ABSTRACT The debates on hate speech regulation have divided scholars and practitioners. While the liberals largely argue that hate speech ban is anti-democratic and counter-productive for preservation of fundamental human rights, the humanists posit that hate speech is harmful and its regulation is relevant in order to avert the collateral damage/harm it inflicts on human dignity and equality of human beings. Despite the significant efforts in Africa to regulate hate speech, its debates focus on United States and Western Europe. Thus, the account of hate speech regulation in African context is largely understudied. This study therefore examines the impact state regulation of hate speech on sustainable democracy in Africa. Using the qualitative dominant mixed methods approach and data generated from Nigeria and Kenya, the paper argues that state regulation of hate speech presents an opportunity for fostering order, advancing national cohesion, reducing hate speech and promoting inclusive governance for all, irrespective of age, sex, disability, race, ethnicity, origin, religion and economic status. The paper concludes that implementing hate speech legislation alongside other non-legal, dialogue-based, egalitarian, voluntary approaches are relevant for diminishing hate speech and the harms it engender as well as promoting sustainable democracy in Africa and beyond.

Academic Freedom: a Choice Between Conservative or Liberal Perceptions – the Case of the United States

It is only the minimum extent to which the law becomes the instrument of coping with social tautness regarding the academic freedom. On the one hand, legal provisions significantly limit the number of cases related to hate crimes but on the other, they sometimes narrow a discussion due to difficulties in harmonizing individual’s rights and campuses’ perception - a phenomenon, which in the U.S. had been called as “chilling” the freedom. Undoubtedly, the enactment of free speech or academic freedom regulations at universities is necessary as it helps to prevent from a “hate speech” but the legal shape of this process has been strictly connected to a determination for either liberal or conservative description of the academic freedom.
 Regarding the newest Niche’s rankings, ten universities have been selected, five out of the most liberal and five the most conservative public ones. Furthermore, two catholic universities have been added to describe differences in defining the academic freedom. Moreover, some references have been made to the U.S. Supreme Court decisions, and the very fundamental documents, namely the 1940 Statement and Harvard Free Speech Guidelines. In the separate article a problem of legislative acts that had been enacted for the past two years in a response to Report of the Committee on Freedom of Expression by the University of Chicago of 2014 will be covered. A few remarks upon this matter have been hereby made, though.
 The article is based on a dogmatic legal method, including quotations of legal sources and their subsequent analysis.

A Variable Number of Cheers For Viewpoint-Based Regulations of Speech

It is widely taken for granted that viewpoint-based restrictions of speech are, as a class, especially disfavored, meriting either absolute prohibition or strict scrutiny. As it turns out, however, this common assumption is both descriptively incorrect and normatively unjustifiable. A typology of the various basic forms of viewpoint-based restriction of speech supports this initially surprising claim. This typology can be constructed out of the obvious uncertainties, ambiguities, equivocations, disparities, and gaps found in the viewpoint-restriction cases. Ultimately, depending upon type and circumstance, and apart from any weight of any relevant government interest, a viewpoint-based speech restriction of speech may deserve anywhere between zero and three cheers.

The Openness of the Commercial Free Speech Test and the Value of Self-Realization

There is certainly more than one way to think of self-realization as a value underlying freedom of commercial speech and its regulation. The accompanying Article argues for the distinctive importance of a particular version of self-realization: that of freely arrived-at human flourishing, personal development, genuine fulfillment, and even happiness itself. It is contended that the main current commercial free speech test, as developed in the Central Hudson case, can actually be interpreted as compatible with a relatively lax mere reasonableness test. Under our current broad cultural, institutional, and economic circumstances and power relationships, the most valuable forms of the free speech value of self-realization are generally best promoted by a mere reasonableness test of pure commercial speech regulations.

The Structure of Intermediate Review

This article will be published in 25 Lewis & Clark L. Rev. No. 3 (2021). In Whole Woman’s Health v. Hellerstedt, Justice Thomas criticized existing Supreme Court doctrine regarding the “tiers of scrutiny,” quoting a passage from an earlier Justice Scalia dissent that the “three basic tiers – ‘rational basis,’ intermediate, and strict scrutiny – ‘are no more scientific than their names suggests, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’” 136 S. Ct. 2292, 2327 (2016), quoting United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting). Justice Thomas added, “But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. . . . [M[ore recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights. . . . Meanwhile, the Court selectively applies rational-basis review – under which the question is supposed to be whether ‘any state of facts reasonably may be conceived to justify’ the law – with formidable toughness.” Id., quoting McGowen v. Maryland, 366 U.S. 420, 426 (1961). Despite these concerns, careful attention to the Court’s decisions reveals a predictable and principled structure to the Court’s existing standards of review. Justice Thomas’ criticisms stated in points and above on the “scientific nature” of the standards of review and possible selective application of “rational basis review” are addressed in a separate article entitled, “The Structure of Rational Basis and Reasonableness Review.” Justice Thomas’ criticism in point about the malleability in selecting which standard of review to adopt is addressed in a separate article entitled, “Justifying the Supreme Court’s Standards of Review.” Justice Thomas’ criticism in point regarding selective application of the “higher standards of review” are addressed into two related articles, “The Structure of Intermediate Review” and “The Structure of Strict Scrutiny Review.” All four of these articles are now posted on SSRN and available at http://libguides.stcl.edu/kelsomaterials. This article addresses “The Structure of Intermediate Review.” Today, there are two well-established versions of intermediate review: (1) standard intermediate review used for cases like (a) gender or illegitimacy discrimination under the Equal Protection Clause, based upon Craig v. Boren, or (b) content-neutral regulations of speech in a public forum, based upon cases like Ward v Rock Against Racism; and (2) a heightened intermediate review standard used for content-based, subject-matter regulations of commercial speech under Central Hudson Gas & Electric Co v. Public Service Commission of New York. In actual use, four other kinds of intermediate review tests have been used by the Court in some cases. These four can be viewed as “mutations” of the two kinds of intermediate review proper to apply. These four mutations involve: (1) a “hybrid” kind of reasonableness balancing/intermediate review used in some cases involving the Second Amendment right to bear arms, as in NRA of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, or for a while under the commercial speech doctrine stated in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico; (2) a “watered-down” intermediate review, used occasionally in cases like City of Erie v. Pap’s A.M., involving content-neutral regulation of sexually oriented businesses, or Clark v. Community for Creative Non-Violence, involving protests activities in public parks; (3) heightened “exceedingly persuasive” intermediate review used in United States v. Virginia, a case involving gender discrimination under the Equal Protection Clause; and (4) a heightened intermediate review kind of test used for content-neutral injunctions on freedom of speech in Madsen v. Women’s Health Center, Inc. Part II of this article will discuss the two well-established kinds of intermediate review. This discussion will provide detailed treatment of a structured approach to phrasing and applying these standard kind of intermediate review tests. Following this discussion, Part III will discuss: (1) the “hybrid” kind of intermediate review. Part IV will address (2) the “watered-down” kind of intermediate review. Part V will discuss (3) the “exceedingly persuasive” kind of intermediate review. Part VI will discuss (4) intermediate review in the context of injunctions on speech. Following this analysis, Part VII will discuss other doctrinal approaches to intermediate review occasionally suggested by members of the Court and will conclude that these other approaches, as well as the four mutated kinds of intermediate review, should be rejected, and that the first three of these mutated anomalies should adopt standard intermediate review, and the fourth should adopt the established heightened intermediate review of Central Hudson. Part VIII will provide a brief conclusion.

Trump's Lies: The Unconstitutionality of Government Propaganda

Government propaganda—the government’s deliberate dissemination of false claims on matters of public interest—has increasingly become a source of concern in the United States. Not only does the current presidential administration disseminate propaganda at a rate unprecedented in the modern era, so that Americans now live in an age of government-created “alternative facts,” but the internet and social media have made it possible to find receptive audiences with alarming speed and accuracy. This surge of government propaganda poses troubling questions for the health of our democracy, which requires political accountability and the valid consent of the governed to thrive. Although the crucial role that speech plays in our democratic self-rule is a major reason it merits First Amendment protection, the Free Speech Clause as currently interpreted has no part to play in combating government propaganda. Under the government speech doctrine, the Free Speech Clause does not apply to government speech, including government propaganda. It is time to revisit that conclusion. This Article argues that government propaganda, although government speech, ought to be regarded as covered by, and in violation of, the Free Speech Clause. Admittedly, this proposal is radical for two reasons. First, with few exceptions, the free speech tradition in the United States is averse to regulating harmful speech. Such regulations are believed to invite government abuse and to chill private speech. However, neither of these concerns are triggered when the government is the object rather than the enforcer of speech regulations. The second radical aspect of this proposal is bringing government speech into the purview of the Free Speech Clause. Nevertheless, government propaganda sufficiently undermines the core goals of free speech such that the Free Speech Clause ought to address it.

Children as Crowbar? Justifying Censorship on the Grounds of Child Protection

ABSTRACT This article studies how possible it is to use the need to protect vulnerable populations, such as children, as a justification to limit freedom of expression in democratic societies. The research was designed and conducted based on the idea that the regulation of speech and access to content is not only a matter of law and legislative interpretations, but also a question of social norms and values. The study is based on two surveys, one implemented with a representative sample of Norwegians aged 15 and older, the other with a sample of journalists. The results show that for the general population sample, 76% of respondents agreed that the protection of weak groups, such as children, is more important than freedom of expression. The data analysis also shows that gender, education, religious affiliation, trust in media and fear of a terrorist attack are all linked to the likelihood of agreeing with this statement. Women are 66% more likely than men to be in favour of limiting freedom of expression to protect weak groups, such as children. While the numbers of those who agree are lower among journalists, up to 50% of journalists still totally or partially agree that protecting weak groups is more important than freedom of expression. We discuss the policy implications of these results for democratic societies.

Your Speech or Your Life: The New York Attorney General's Camouflaged Assault on the First Amendment

Vested with vast investigatory and prosecutorial authority, New York’s Attorney General is one of the most powerful law enforcement officials in the nation, increasingly acting not only as an enforcer, but also as a de facto regulator. Among the AG’s powers is that she may settle cases on the state’s behalf by entering into agreements called “Assurances of Discontinuance” (AODs) with targets of state investigations—which for decades has been how the AG’s Office has resolved the vast majority of its cases. And for several years now, the AG has been inserting in most AODs a provision forbidding the settling party from “tak[ing] any action” or “mak[ing] … any public statement denying” the AOD’s “propriety … or expressing the view … that th[e] [AOD] is without factual basis.” This provision is apparently inspired by virtually identical clauses that the SEC and CFTC have been including in their settlements for decades. The tension between such “gag” provisions and the American free-speech tradition is difficult to ignore. Yet their potential unconstitutionality has thus far flown under the radar, with no court or commentator even acknowledging the First-Amendment concerns raised by the New York AG’s settlement practice. This Article takes on that issue, arguing that these speech-suppressant provisions’ inclusion in AODs flagrantly violates the freedom of speech. The gag clauses cannot properly be regarded as voluntary waivers of First-Amendment rights, since settling parties are required as a condition of settlement to surrender their right to publicly criticize the AG’s allegations against them—and those who refuse to do so face reprisal in the form of state prosecution or investigation. The Constitution, generally speaking, forbids public officials from using such tactics to strong-arm citizens into giving up fundamental freedoms. In fact, in at least some instances, the AG’s gag clauses amount to prior restraints on speech, a form of speech regulation considered particularly constitutionally problematic. Finally, in addition to their coercive nature, AODs’ speech-suppressant provisions raise First-Amendment concerns for other reasons—namely, that they restrict the communication of ideas and information that the public has a strong interest in hearing. This Article’s conclusions also carry important implications for the constitutionality of the SEC’s and CFTC’s speech-suppressant practices, as well as for any other official attempt to exact surrenders of constitutional rights through settlement agreements.

An Examination of Online Hate Speech Regulation from the Perspective of International Human Rights Law

An Examination of Online Hate Speech Regulation from the Perspective of International Human Rights Law

Substantive Toleration and Viewpoint Discrimination

Under modern Supreme Court doctrine regarding the First Amendment freedom of speech, the court distinguishes between content-based regulations of free speech that involve viewpoint discrimination versus content-based regulations that only involve subject-matter or topic discrimination. Viewpoint discrimination occurs when government action is triggered depending on which side of a topic the individual supports. Subject-matter or topic discrimination occurs when government action is triggered whenever a topic/subject-matter is discussed without regard to the person’s views on that topic/subject-matter. While any form of content-based discrimination by government is troubling, viewpoint discrimination is a more troublesome form of content discrimination because it involves the government taking sides in a debate. Most of the time this distinction is clear, but occasionally categorizing a regulation has given the Court some problems. While the holdings in the cases may be defensible, one set of cases from 1988 – 2007 seem to involve strained reasoning: Boos v. Barry, Finley v. National Education for the Arts, and Morse v. Frederick. A second, more recent set of cases from 2017 – 2019 seem to adopt reasoning contrary to these three cases: Matel v. Tam and Iancu v. Brunetti. The 2015 case of Walker v. Texas Department of Transportation, which also includes viewpoint discrimination issues, also has problematic reasoning. One way to understand these cases is to note that in the earlier set of cases a majority of the Supreme Court had a predisposition, if possible, to uphold traditional moral values in society despite some impact on a pure marketplace of ideas rationale. The second set of cases involves a changed predisposition among the Court majority to adopt a purer marketplace of ideas methodology that government should tolerate all kinds of speech without regard to the problematic moral values embedded in that speech. Both these approaches have problems in practice. This can be seen by considering three kinds of moral philosophies: (1) a moral philosophy based on upholding traditional moral values; (2) a moral philosophy based on “procedural toleration” of tolerating all kinds of speech without regard to any problematic moral values embedded in that speech; and (3) a moral philosophy based on “substantive toleration.” Some persons hear the word “tolerance” and they think it means all values are relative and that every person’s views are equally entitled as a procedural matter to be viewed as legitimate from a moral perspective. In contrast, other persons understand that “tolerance” involves a substantive commitment to treating other persons with equal concern and respect, and that individuals who espouse non-tolerant “nativist” or “cultural supremacists” notions violate this substantive commitment to tolerance. Because “nativist” or “cultural supremacist” notions violate a substantive commitment to tolerance, from the perspective of “substantive tolerance” their views should not be entitled to equal concern and respect and their pleas for tolerance of their perspectives should be rejected. The thesis of this article is that persons should adopt “substantive toleration” as the moral philosophy to which to aspire. From this perspective, a tolerant person has no obligation to, and indeed should not, tolerate intolerant attitudes in others. Viewpoint discrimination law should take this insight into account in resolving the problematic case reasoning of the viewpoint discrimination cases of the last four decades.

Time, Place, and Manner Restrictions on Speech

The category of time, place, and manner restrictions on speech, as supposedly distinct from absolute bans, appears to be central to free speech law. Even a modest examination of the case law, however, suggests the arbitrariness of any such distinction. Any familiar time, place, or manner restriction on speech can be reasonably re-described as an absolute ban on speech, and vice versa. Any differences in how the relevant regulations of speech should be judicially tested, whether by differing degrees of rigor or otherwise, are correspondingly arbitrary. This Article recommends abandoning any attempt to substantively distinguish between time, place, and manner restrictions and absolute prohibitions of speech. The three currently used judicial tests for presumed content-neutral restrictions on the supposed time, place, and manner of speech should be substantially revised and consolidated. Any replacement test should then de-emphasize concerns for any degree of narrowness of tailoring, focusing instead on whether the regulated speakers are now meaningfully worse off, in terms of their own free speech values, given whatever channels of communication remain available to them after the speech regulation in question has been imposed.

The Kids Are All Right: The Law of Free Expression and New Information Technologies

Recently the literature on free expression has turned to the question, Should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay examines and critiques Professor Tim Wu’s prominent version of the argument that the development of NIT should lead us to rethink the law of free expression. After laying out the paradigm underlying free expression law, that speech causes harm, the Essay examines two aspects of the argument that the more speech, the more harm, which might lead us to seek a new set of rules that jointly optimize speech and harm. One is that NIT should lead us to alter substantive First Amendment law because NIT lead us to reconsider the general balance we have struck among the values promoted by free expression. Section IV deals with that argument. The second is that NIT affect the mechanisms by which specific categories of speech cause specific harms. That argument calls for a more granular approach. To implement that approach the Essay looks at the mechanisms by which more speech might render the “rules in place” no longer socially optimal. It examines false statements that injure reputation (libel), expression that induces unlawful action (the subject of the traditional law of sedition); sexually explicit expression (obscenity and pornography); false statements that inflict no material harm (“fake news”); and threats (cyberstalking). A final section turns to arguments about the platforms used by NIT – Twitter, Facebook, and the like. (1) The platforms should be subject to the same limitations on speech regulation that apply to the government. These arguments sound in the state-action doctrine rather than in the First Amendment, and I have relatively little to say about them. (2) The platforms can be regulated through the application of antitrust or fiduciary law without violating the First Amendment. I discuss existing First Amendment doctrine about the application of “general” laws to the media and examine some issues that might arise in connection with tinkering with antitrust or fiduciary law as the vehicle for platform regulation. (3) The platforms should be held liable for the utterances they disseminate, holding constant the substantive rules of libel, threats, and the like. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.