The Center for Internet and Society at Stanford Law School is a leader in the study of the law and policy around the Internet and other emerging technologies.
In the wake of recent reporting of Facebook’s alleged liberal curation of its trending newsfeed and Sen. John Thune’s subsequent letter to CEO Mark Zuckerberg seeking answers about these allegations and demanding a meeting, constitutional scholars, press advocates, and civil libertarians have mobilized the First Amendment in the company’s defense. The Electronic Frontier Foundation’s (EFF) Sophia Cope argued that the letter constitutes “an improper intrusion into editorial freedom,” and Stanford Law lecturer Thomas Rubin wrote in Slate that “we should be concerned about this federal intrusion into an independent organization’s editorial process.”
Yesterday my Elon Law colleague Enrique Armijo, who writes about the application of the First Amendment to new technologies, filed a comment in the FCC's net neutrality proceeding. As CIS blog readers know, the FCC has shown interest in using its preemption authority to remove barriers to municipalities establishing their own broadband services to compete with private ISPs.
In a big win for free speech, the California Court of Appeal has rejected Olivia de Havilland’s right of publicity and false light claims against FX. The court’s ruling [PDF] explains that the First Amendment protects creative works about celebrities whether the work in question is fact, fiction, or a combination of both. While Hollywood will breathe a sigh of relief, the ruling should also protect other speech by ensuring that right of publicity claims are subject to meaningful First Amendment limits.
Though scholars have identified the expanding scope of First Amendment speech doctrine, little attention has been paid to the theoretical transformation happening inside the doctrine that has accompanied its outward creep. Taking up this overlooked perspective, this Article uncovers a new speech theory: the libertarian tradition. This new tradition both is generative of the doctrine’s expansion and risks undermining the First Amendment’s theoretical foundations.
The great 21st-century platforms — Facebook, Twitter, YouTube, Snapchat, and the rest — have this year found themselves in the middle of the speech wars. Twitter is struggling to contain vile trolling and harassment, and Facebook has gotten scalded on the little toe it dipped into curating journalism.
Revenge porn, also known as nonconsensual pornography or cyberexploitation, has been with us for a while, but only recently — with the hack of celebrities’ iCloud accounts — has it captured the public’s attention. What the exposure of Jennifer Lawrence’s and others’ photos made clear is that the powerful and the powerless are equally vulnerable to the exploitation of their nude photos. And the law is finally starting to protect these victims.
Most people believe that privacy and free speech are always at odds. People all over the world have struggled with how to reconcile the problems of media gossip with our commitment to free and open public debate for over a century. The rise of the Internet has made this problem more urgent. We live in an age of corporate and government surveillance of our lives. And our free speech culture has created an anything-goes environment on the web, where offensive and hurtful speech about others is rife.
Jon Hanson and Douglas Kysar coined the term “market manipulation” in 1999 to describe how companies exploit the cognitive limitations of consumers. Everything costs $9.99 because consumers see the price as closer to $9 than $10. Although widely cited by academics, the concept of market manipulation has had only a modest impact on consumer protection law.
"Any effort to regulate social media companies and search engines would run up against a bevy of constitutional free speech questions. Legally, Trump doesn’t have any authority to change how Google displays search results, said Daphne Keller, director of intermediary liability at the Stanford Center for Internet and Society.
“By dictating what a private company does with search results, it legally would be like dictating what The Chronicle does with news reporting,” Keller said. “It would be a First Amendment violation.”"
"Stanford Law School’s (SLS) Center for Internet and Society Junior Affiliate Scholar and outgoing Lecturer in Law Morgan Weiland has been awarded the 2018 Harry W. Stonecipher Award for Distinguished Research in Media Law and Policy for her 2017 article, “Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition.” The article, published in the Stanford Law Review in May 2017, uncovers a new theory undergirding the First Amendment’s expansion to include commercial and corporate speech.
"This is where the context of the internet starts to matter. The law assumes a narrow notion of fame—not a world where a YouTube channel’s following can rival a media company’s and the parents of a slain child can instantly become household names. “The First Amendment is a legal tool … crafted in a particular time to deal with particular media environments,” says Neil Richards, a First Amendment expert at the University of Washington Law School. “Our libel model is one that envisions establishment media and a bunch of people gossiping. It doesn’t envision social media.”"
"Giving police more flexibility to respond to allegations of threats will likely raise concerns over First Amendment rights, said Danielle Citron, a law professor at the University of Maryland who specializes in cyberstalking.
Citron notes Maryland already has laws prohibiting the cyberbullying of minors and said those laws sparked a debate over First Amendment rights. Attempts to expand that law failed earlier this year over concerns the changes were overly broad.
"Annemarie Bridy, an affiliate scholar at the Center for Internet and Society at Stanford University echoed that, telling the Daily Dot that “the First Amendment limits only the government’s ability to restrict freedom of speech. It doesn’t limit what corporations that own social media platforms can do.”
Bridy also brings up a second important point: that social media users agree to abide by the terms of service of the site they’re posting on.
"Neil Richards, a law professor at Washington University School of law, says the case is particularly important because it seeks to assess how the internet actually works in the real world. "When we’re thinking about the First Amendment, it’s important that we recognize the internet that we have in practice, rather than an idealized version of the internet that we might want to have or that Silicon Valley might sell us," he says."
"“It falls through the cracks because it’s all very betwixt and between,” Danielle Citron, a law professor at the University of Maryland and cyberspace expert, told Wired. “There are all sorts of First Amendment problems because it’s not their real body.”"
"And it's the very artifice involved in these videos that provides enormous legal cover for their creators. “It falls through the cracks because it’s all very betwixt and between,” says Danielle Citron, a law professor at the University of Maryland and the author of Hate Crimes in Cyberspace. “There are all sorts of First Amendment problems because it’s not their real body.” Since US privacy laws don’t apply, taking these videos down could be considered censorship—after all, this is “art” that redditors have crafted, even if it’s unseemly."
"For Morgan Weiland, PhD candidate and junior associate researcher at the Center for Internet & Society at Stanford Law School, the discussion is very complicated and she does not see a solution in the short or medium term.
"The risk of closing pages or removing content from white supremacists is what happens tomorrow, someone can do the same with a page from the Black Lives Matter movement ," Weiland says in an interview with BBC World.
"Where you put the limit, how you avoid falling into censorship ... are very delicate issues,""
From the First Amendment to Net Neutrality. How Media Regulation Affects What We Say
Does the FCC's recent ruling on net neutrality promise more equal media access? Or will it lead to years of divisive litigation? FCC Commissioner Mignon Clyburn will discuss implications of the new rules and the role of media regulation in creating a free press; Victor Pickard of the University of Pennsylvania will look at how media regulation choices in the 1940s affect us today; Stanford's Morgan Weiland will explain what the proposed federal shield law means for journalists.
The Federalist Society's 2013 National Lawyers Convention is scheduled for Thursday, November 14 through Saturday, November 16 at the Mayflower Hotel in Washington, D.C. The topic of this year's convention is: Textualism and the Role of Judges.
Daniel Nazer Staff Attorney, Electronic Frontier Foundation
Jonathan Blavin Partner at Munger, Tolles & Olson
• First Amendment and public figures in sports games
• Cheating and hacking in online game play
MCLE Registration: 5:00 - 5:30 p.m.
Program 5:30 - 6:30 p.m.
The Symposium, co-sponsored by Stanford’s Center for Internet and Society, took place on Friday, February 10, 2012. Scholars and noted practitioners from across the country joined STLR to discuss current and emerging issues in First Amendment law and the Internet.
President Trump has blocked Twitter followers on his personal feed--raising questions, and a lawsuit, about first amendment rights on social media. An expert on free speech in the online world says the case has wide implications for public figures on all forms of social media.
Bloomberg Law Brief with June Grasso. Andrea Matwyshyn, a law professor at Northeastern University, and Nate Cardozo, a lawyer at the Electronic Frontier Foundation, discuss the ongoing dispute between Apple and the U.S. Government, which presses on as Apple continues to fight back against a court order requiring it to write software that would help the FBI unlock an iPhone used by one of the San Bernardino shooters. Now, Apple is planning to argue that the computer code in their devices is a unique creative work that should be protected by First Amendment of the U.S. Constitution.
From the First Amendment to net neutrality, How does media regulation affect what we say? The Sixth Annual Rebele Symposium addressed this topic with Mignon Clyburn, Victor Pickard, and Morgan Weiland. Ted Glasser and Christine Larson moderated the event.