Yesterday’s 108-page majority opinion upholding the Federal Communications Commission’s net neutrality rules devotes less than 10 pages to the First Amendment challenge. Judges Tatel and Srinivasan held, in validating the FCC’s net neutrality rules, that prohibiting Internet Service Providers from prioritizing certain Internet traffic does not violate the First Amendment. This limited First Amendment analysis is fitting. Companies like Time Warner do not make editorial judgments when providing Internet services and thus are not First Amendment speakers. However, the D.C. Circuit’s opinion has implications for other First Amendment interests – like Google’s right to control its algorithm or an agency’s power to revoke a communications provider’s free speech rights. The D.C. Circuit should have written its opinion more carefully so as to better protect and clarify First Amendment interests for future cases.
Category: Uncategorized
Presidential candidate Donald Trump has a widely known, albeit incoherent, stance on libel. Like many of Trump’s policy positions, his views on libel appear to be founded upon an angry shard of truth (newspapers should not allow bias or corporate concerns to pervert their reporting). But as with many of his policy positions, Trump’s views on libel fail to grasp the complexity of the problem, and expose his views as self-serving and hypocritical. Indeed, instead of making American great again, Trump’s views on libel threaten to undermine one of the things that makes America the greatest—our uniquely strong free speech protections.
Continue reading “Trump’s Stance on Libel Would Make America Europe Again”
In response to allegations that Facebook suppresses conservative news items in its “Trending” section, Senator John Thune has launched an inquiry into Facebook’s policies for determining which items Facebook links to as most newsworthy. Senator Thune, Chairman of the Committee on Commerce, Science, and Transportation, is requiring Facebook CEO Mark Zuckerburg to answer questions such as “how many stories have curators excluded that represented conservative viewpoints or topics of interest to conservatives?” Thune’s legitimate concern that Facebook is misleading the public into thinking that a neutral algorithm selects the “Trending Topics” is now outweighed by the graver First Amendment concern that the government is attempting to manipulate or suppress Facebook’s speech.
Continue reading “Facebook’s “Trending Topics” and The First Amendment”
My article has been posted on the Columbia Law Review’s website. I am very receptive to all comments and feedback.
http://columbialawreview.org/content/free-speech-consequentialism/
In March of 2007, Brad Delp, the legendary lead singer of the band Boston, committed suicide. Last November, Massachusetts’s highest court of appeals dismissed a defamation lawsuit by band member Donald Thomas Scholz, who claimed that the Boston Herald and Delp’s ex wife Micki falsely blamed Scholz for Delp’s suicide. Three days prior to the suicide, Scholz, a perfectionist who treated Delp and other band members harshly, had informed Delp that Fran Cosmo, another band member with the ability to cover Delp’s painfully difficult high notes, had been disinvited from Boston’s summer tour. Delp had been lamenting Scholz’s tight control over him and discussed suicide as a way to avoid disappointing Scholz and Boston’s fans. However, Delp also suffered from mental illness, and, just eight days prior to the suicide, Delp was caught secretly videotaping the bedroom where his fiance’s younger sister, Meg, lived with her boyfriend. This incident distressed Delp greatly, and both Meg and her sister Pam feared for Delp’s safety.
Because the exact reasons for Delp’s suicide are unknown, the Massachusetts Supreme Judicial Court held that statements about Delp’s motive were matters of speculation or interpretation, protected by the First Amendment from defamation lawsuits. The SJC also concluded that Herald headlines such as “Pal’s snub made Delp do it: Boston rocker’s ex-wife speaks,” are not reasonably interpreted as fact because readers do not expect newspaper headlines, especially those in entertainment news columns, to “include nuanced phrasing.” The SJC opinion, which confusingly interweaves the Massachusetts requirements for bringing a defamation action and the First Amendment protections that shield particular libel suits, glosses over significant questions such as how misleading headlines can be, how much responsibility newspapers have in ferreting out other causes in cases involving motive, and when the cause of someone’s suicide contains objectively verifiable facts. The Supreme Court, which has not reviewed a defamation case in 25 years, should use this case to clarify some important tensions in defamation law.
When I talk to students about free speech issues, one of the major objections to America’s conception of free speech is that it favors the rich and powerful, thus perpetuating the status quo. This is a fair and important objection. In this post, I will address the reasons that I ultimately find this objection conceptually and empirically unsatisfying. Each of these reasons deserves its own blog post, so I want to just begin this conversation by outlining my thoughts here.
In a previous post on Bollea v. Gawker, I predicted that the Florida appellate court would likely invalidate Hulk Hogan’s stunning $140 million judgment against Gawker Media. After much reflection, I believe that the Florida appellate court should overturn this judgment.
There are many reasons why Hogan deserves to be compensated after Gawker released, without Hogan’s consent, excerpts of a tape depicting Hogan engaging in sexual activity. There are just as many reasons why Gawker, who did not illegally obtain the sex tape, deserves to publish the tape without repercussions. Ultimately, a six-member jury should not decide where to set this balance between privacy interests and free speech rights. America’s commitment to free speech exceptionalism means appellate courts must prioritize free speech above privacy rights in this case. The Florida court of appeals (and ultimately the Supreme Court) should hold that when a celebrity has inserted his private life into the public discourse, excerpted video evidence of that private life, submitted along with commentary, is newsworthy as a matter of First Amendment law.
The Emory pro-Trump chalking incident is a symbolic flashpoint for who is permitted a voice at our nation’s universities. At this moment in history, universities must ensure that all students feel safe and included while allowing for cultural and political pluralism. To do this, universities should not cede entirely to students the line between speech and intimidation.
Continue reading “The Emory Chalking Incident, and When Speech Becomes Intimidation”
The Hulk Hogan trial against Gawker is a First Amendment analyst’s dream. The lawsuit, based on Gawker’s publishing a video tape that includes nine seconds of Hulk Hogan engaging in sexual activity, presents the complex legal tension between privacy interests and free speech rights. How society responds to the $140 million verdict a Florida jury awarded Hogan will both reflect and reinforce our views of what is untouchable, even by the media. I plan to write several posts about this case. This first post will discuss why Hulk Hogan’s verdict will likely be overturned on appeal. The next post will explore whether the decision should be overturned on appeal, from both legal and policy perspectives. Later posts will update readers on new developments and further implications of the case.
Hulk Hogan’s verdict will likely be overturned by the Florida District Court of Appeal, Second Circuit. That court, in earlier overturning the trial judge’s grant of a preliminary injunction to stop the publication of the video before trial, already indicated its sympathies to the First Amendment defense. The appellate court held that (1) Hogan is a public figure, as a wrestler and reality television star; (2) Hogan has already discussed his family and sex life in the media; (3) sexually explicit content does not nullify speech’s newsworthiness, (4) the posted video and commentary are linked to a matter of public concern; and, importantly, (5) Gawker carefully published only a small excerpt of the sex tape, not the entire thing. Although a ruling on a preliminary injunction does not bind the Florida court of appeals now that it can view all of the evidence, the appellate court seems poised to disregard the trial court’s First Amendment decisions, all issued without full written orders.
Justice Scalia’s death has brought out what I believe to be the worst (although some strategists might consider the best) in our politicians. Even before the Justice’s funeral, some Republicans clamored to insist that President Obama cannot select Justice Scalia’s replacement. Not to be outdone, Democratic leaders such as Senator Elizabeth Warren scolded Republicans and argued that nominations by the President should not be blocked. This week, Merrick Garland, a centrist, highly qualified, 63-year old D.C. Circuit judge has been nominated. President Obama’s nomination appears to be either a concession to Republicans, an attempt to embarrass Republicans who stall hearings on Garland’s confirmation, or a smart offer to Republicans of an alternative to Hillary Clinton nominating a Justice who is much more ideologically (and judicially) liberal than Judge Garland.
Even for those inclined to view our politicians generously, unclean hands abound. The Republicans’ argument that “the people should decide” the next SCOTUS Justice is disingenuous. The Democrats, for their part, could make promises that allow these situations to be less political in the future. While the desire to avoid a Supreme Court Justice who undermines one’s constitutional (and political) ideals is understandable, and perhaps insurmountable, this current political battle is myopic.
