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Right to Anonymous Speech, Part 3: Anonymous Speech and Age-Verification Laws

TOTM An issue that came up during a terrific panel that I participated in last Thursday—organized by the Federalist Society’s Regulatory Transparency Project—was whether age-verification laws for social-media use . . .

An issue that came up during a terrific panel that I participated in last Thursday—organized by the Federalist Society’s Regulatory Transparency Project—was whether age-verification laws for social-media use infringed on a First Amendment right of either adults or minors to receive speech anonymously.

My co-panelist Clare Morell of the Ethics and Public Policy Center put together an excellent tweet thread summarizing some of her thoughts, including on the anonymous-speech angle. Another co-panelist—Shoshana Weissmann of the R Street Institute—also has a terrific series of blog posts on this particular issue.

Continuing this ongoing Truth on the Market series on anonymous speech, I wanted to respond to some of these ideas, and to argue that the primary First Amendment and public-policy concerns with age-verification laws really aren’t about anonymous speech. Instead, they are about whether such laws place the burden of avoiding harms on the least-cost avoider. Or, in the language of First Amendment jurisprudence, whether they are the least restrictive means to achieve a particular policy end.

Read the full piece here.

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Innovation & the New Economy

Minor Matters in Cyberspace: Examining Internet Age-Verification Regulations

TOTM I participated yesterday in a webinar panel hosted by the Federalist Society’s Regulatory Transparency Project. The video was livestreamed at YouTube. Below, I offer my . . .

I participated yesterday in a webinar panel hosted by the Federalist Society’s Regulatory Transparency Project. The video was livestreamed at YouTube. Below, I offer my opening remarks, with some links.

Thank you for having me. As mentioned, I’m a senior scholar in innovation policy at the International Center for Law & Economics (ICLE). This means I have the institutional responsibility to talk to you today about Ronald Coase and transaction costs. Don’t worry, I’ll define my terms and explain why these things are important. In fact, I think it could help to frame our discussion, before offering my own preliminary thoughts on the debates over a duty of care to protect minors online and online age-verification and parental-consent laws.

Read the full piece here.

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Innovation & the New Economy

Ben Sperry on Internet Age-Verification Rules

Presentations & Interviews ICLE Senior Scholar took part in an online panel hosted by the Federalist Society’s Regulatory Transparency Project regarding recent regulatory and legislative proposals to enact . . .

ICLE Senior Scholar took part in an online panel hosted by the Federalist Society’s Regulatory Transparency Project regarding recent regulatory and legislative proposals to enact age-verification requirements for access to social media and adult websites. Video of the full panel is embedded below.

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Innovation & the New Economy

Right to Anonymous Speech, Part 2: A Law & Economics Approach

TOTM We at the International Center for Law & Economics (ICLE) have written extensively on the intersection of the First Amendment, the regulation of online platforms, and the immunity from . . .

We at the International Center for Law & Economics (ICLE) have written extensively on the intersection of the First Amendment, the regulation of online platforms, and the immunity from liability for user-generated content granted to platforms under Section 230 of the Communications Decency Act of 1996.

One of the proposals we put forward was that Section 230 immunity should be conditioned on platforms making reasonable efforts to help potential plaintiffs be able to track down users for illegal conduct. This post is the second in a series on the right to anonymity. In this edition, I will explore the degree to which the First Amendment protects the right to anonymous speech, and whether it forecloses the application of such a statutory duty of care.

Read the full piece here.

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Innovation & the New Economy

Right to Anonymous Speech, Part 1: An Introduction from First Principles

TOTM What is anonymity? Do we have a right to it? And against what other values should this right be balanced when it comes to government . . .

What is anonymity? Do we have a right to it? And against what other values should this right be balanced when it comes to government regulation? This blog post will be the first in a series that looks at what anonymity is, why it is important, and what tradeoffs should be considered when applying a right to anonymity in specific contexts.

Read the full piece here.

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Innovation & the New Economy

Bills Aimed at ‘Protecting’ Kids Online Throw the Baby out with the Bathwater

Popular Media The phrase “don’t throw the baby out with the bathwater” is used to signify that we shouldn’t accidentally throw out good things in our efforts . . .

The phrase “don’t throw the baby out with the bathwater” is used to signify that we shouldn’t accidentally throw out good things in our efforts to get rid of the bad. As the U.S. Senate again gears up to consider multiple bills intended to protect teens online, they must be aware that substantially increasing the costs of creating teen-friendly platforms could lead online platforms to gate access to their platforms in ways that would exclude teens altogether.

Read the full piece here.

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Innovation & the New Economy

Noisy Speech Externalities

Scholarship Introduction A central tenet of contemporary First Amendment law is the metaphor of the marketplace of ideas—that the solution to bad speech is more, better, . . .

Introduction

A central tenet of contemporary First Amendment law is the metaphor of the marketplace of ideas—that the solution to bad speech is more, better, speech. This basic idea is well-established in both judicial and scholarly writing—but it is not without its critics. My contribution to this volume adds a new criticism of the marketplace-of-ideas metaphor. I argue that there are circumstances where ostensibly “good” speech may be indistinguishable by listeners from bad speech—indeed, that there are cases in which any incremental speech can actually make other good speech indistinguishable from bad speech. In such cases, seemingly “good” speech has the effect of “bad” speech. I call this process by which ostensibly good speech turns the effects of other speech bad “a noisy speech externality.”

This thesis has important implications. First, it offers a poignant critique of the marketplace-of-ideas aphorism introduced by Justice Holmes in his Abrams dissent. If the marketplace of ideas is subject to significant market failure, correctives may be justified. Market failures, after all, are a standard justification for regulatory intervention. But, second, my contribution goes a step farther, suggesting not only that there are circumstances in which good speech may fail as a corrective to bad speech but also that there are circumstances in which the addition of seemingly good speech may only yield more bad speech. In such cases, the only solution to bad speech may be less speech—encouraging more speech may actually be detrimental to our speech values. If that is the case, then correctives may be not only justified but needed to satisfy an important societal interest. And, third, this chapter presents solutions for content-neutral ways in which to implement such correctives.

The insight underlying this thesis builds on my prior work applying the insights of Claude Shannon’s information theory to social media. That piece applied Shannon’s work to social media to argue that, at least at a metaphorical level and potentially at a cognitive level, our capacity to communicate is governed by Shannon’s channel-capacity theorem. This theorem tells us that the capacity of a communications channel is limited by that channel’s signal-to-noise ratio. Critically, once that capacity is exceeded, any additional signal is indistinguishable from noise—and this has the effect of worsening the signal-to-noise ratio, further reducing the communications capacity. In other words, after a certain threshold, additional speech isn’t merely ineffective: It creates a negative externality that interferes with other speech.

Other scholars have made similar arguments, which can casually be framed as exploring the effects of “too much information” or “information overload.” But the negative-externality element of this argument goes a step further. A “too much information” argument suggests that listeners are overwhelmed by the quantity of speech to which they may be subject. This argument suggests that speakers can—deliberately or otherwise—exercise a veto over other speakers by saturating listeners’ information sources. For the listener, it is not merely a question of filtering out the good information from the bad (the signal from the noise): At the point of saturation, signal cannot be differentiated from noise and any filtering necessarily must occur upstream from the listener.

Filtering—reducing the overall amount of speech—has always been a key tool in fighting bad speech. All platforms must filter. Indeed, this is nothing new: Editorial processes have always been valuable to listeners. The question is how they do it, with a related question of the law surrounding that filtering. Under the current approach (facilitated through Section 230 of the Communications Decency Act and built upon First Amendment principles), platforms have substantial discretion over what speech they host. This chapter’s normative contribution is to argue that liability shield should be contingent upon platforms using “reasonable best-available technology” to filter speech—a standard that most platforms, this chapter also argues, likely already meet.

The discussion in this chapter proceeds in four parts. It begins in Part I by introducing technical concepts from the field of information theory—most notably the ideas of channel capacity and the role of the signal-to-noise ratio in defining a channel’s capacity. Part II then introduces the traditional “marketplace of ideas” understanding of the First Amendment and builds on lessons from information theory to argue that this “marketplace” may in some cases be subject to negative externalities—noisy speech externalities—and that such externalities may justify some forms of corrective regulation. It also considers other arguments that have a similar feeling (“too much information,” “information overload,” and “listeners’ rights”), and explains how the negative-externalities consequence of exceeding a channel’s carrying capacity presents an even greater concern than is advanced by those ideas. Parts III and IV then explore the First Amendment and regulatory responses to these concerns, arguing that the negative-externalities concern might justify limited regulatory response. In particular, Part IV argues that platforms can reasonably be expected to implement “reasonable best available technologies” to address noisy speech externalities.

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Innovation & the New Economy

Amicus to the 5th US Circuit Court of Appeals in Netflix v Babin

Amicus Brief STATEMENT OF INTEREST OF AMICI CURIAE This brief is filed on behalf of the Texas Association of Broadcasters, Texas Press Association, Texas Tribune, Freedom of . . .

STATEMENT OF INTEREST OF AMICI CURIAE

This brief is filed on behalf of the Texas Association of Broadcasters, Texas Press Association, Texas Tribune, Freedom of Information Foundation of Texas, The American Booksellers for Free Expression, Association of American Publishers, Inc., The Authors Guild, The Cato Institute, The Center for Investigative Reporting, First Amendment Foundation, Inc., Fox Television Stations, LLC, Freedom of the Press Foundation, Freedom to Read Foundation, The Institute for Policy Innovation, International Center for Law & Economics, The Media Coalition Foundation, The Media Institute, The Media Law Resource Center, Motion Picture Association, Inc., National Coalition Against Censorship, National Press Photographers Association, News/Media Alliance, Penguin Random House LLC, The Reporters Committee for Freedom of the Press, and Tully Center for Free Speech (collectively, “Amici”).[1] As organizations that defend and advocate for First Amendment rights, Amici respectfully submit this brief in support of Plaintiff-Appellee to raise critical free speech issues implicated by this case. Amici share concerns over the bad-faith prosecution employed by the District Attorney and will highlight (1) why federal courts should be available to expeditiously halt unjustified prosecutions and vindicate fundamental First Amendment rights and (2) how allowing the prosecution to proceed could chill a diverse range of speech.

Texas Association of Broadcasters is a non-profit association that represents more than 1,300 television and radio stations in Texas with a tradition of community-oriented, free, over-the-air broadcasting. The Texas Association of Broadcasters was founded in 1953 and performs numerous services on behalf of its members, including advocating legislation relating to and affecting radio and television broadcasters and defending open government, as well as publishing guidebooks on various legal issues, including access to public information.

Texas Press Association (“TPA”) is a non-profit industry association representing nearly 400 daily and weekly newspapers in Texas, each of which upholds a strong tradition of journalistic integrity and community service. TPA, founded more than 130 years ago, performs numerous services on behalf of its members, including advocating legislation relating to free speech and press and taking legal action to protect the First Amendment and open government.

The Texas Tribune is an all-digital, member-supported nonprofit and nonpartisan news organization that covers state government in Texas. Founded in 2009, the Tribune provides its stories for free to the public and for other news organizations to republish, also for free.

Freedom of Information Foundation of Texas is a nonprofit organization that works to encourage a greater appreciation, knowledge and understanding of the First Amendment and helps to ensure that the public’s business is conducted in public. Since its formation in 1978, the Foundation has helped citizens access government meetings and documents. The non-partisan Foundation acts as a statewide information clearinghouse and offers guidance and assistance on FOI-related issues through a network of attorneys and through public seminars and conferences.

The American Booksellers for Free Expression (“ABFE”) is the free speech initiative of the American Booksellers Association (“ABA”). ABA was founded in 1900 and is a national not-for-profit trade organization that works to help independently owned bookstores grow and succeed. ABA represents 2,178 bookstore companies operating in 2,593 locations. ABA’s core members are key participants in their communities’ local economy and culture. To assist them, ABA provides education, information dissemination, business products, and services; creates relevant programs; and engages in public policy, industry, and local first advocacy.

The Association of American Publishers, Inc. (“AAP”), a not-for-profit organization, represents the leading book, journal, and education publishers in the United States on matters of law and policy, advocating for outcomes that incentivize the publication of creative expression, professional content, and learning solutions. AAP’s members range from major commercial book and journal publishers to small, non-profit, university, and scholarly presses, as well as leading publishers of educational materials and digital learning platforms. AAP’s members publish a substantial portion of the general, educational, and religious books produced in the United States, including critically acclaimed, award-winning literature for adults, young adults, and children. AAP represents an industry whose very existence depends on the free exercise of rights guaranteed by the First Amendment. AAP’s board companies are listed at https://publishers.org/who-we-are/our-board.[2] Its full member roster is listed at https://publishers.org/who-we-are/our-members.

The Authors Guild was founded in 1912, and is a national non-profit association of more than 13,000 professional, published writers of all genres. The Guild counts historians, biographers, academicians, journalists, poets, translators, and other writers of non-fiction and fiction as members. The Guild works to promote the rights and professional interest of authors in various areas, including copyright, fighting censorship, and taxation. Many Guild members earn their livelihoods through their writing. Their work covers important issues in history, biography, science, politics, medicine, business, and other areas; they are frequent contributors to the most influential and well-respected publications in every field. One of the Authors Guild’s primary areas of advocacy is to protect the free expression rights of authors.

The Cato Institute was established in 1977 as a nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s Robert A. Levy Center for Constitutional Studies was established in 1989 to promote the principles of limited constitutional government that are the foundation of liberty. Toward those ends, Cato publishes books and studies, conducts conferences, and issues the annual Cato Supreme Court Review.

The Center for Investigative Reporting (d/b/a Reveal), founded in 1977, is the nation’s oldest nonprofit investigative newsroom. Reveal produces investigative journalism for its website https://www.revealnews.org, the Reveal national public radio show that airs on 600+ radio stations, and various documentary projects. Reveal often works in collaboration with other newsrooms across the country.

First Amendment Foundation, Inc., is a 501(c)(3) tax-exempt, non-profit organization created to ensure government openness and transparency by providing education and training, monitoring open records and meetings laws, and assisting citizens and journalists in obtaining access to government information and proceedings. Amicus has a strong interest in this proceeding because it, and the citizens and journalists it supports, all routinely exercise their First Amendment rights by promoting and engaging in speech on matters of public concern that must be free from the chilling fear of prosecution.

Fox Television Stations, LLC, a wholly owned subsidiary of Fox Corporation, owns and operates 29 full-power broadcast television stations in the U.S., including stations located in 14 of the top 15 largest markets, and duopolies in the three largest markets (New York, Los Angeles, and Chicago). In addition to distributing sports, entertainment, and syndicated content, our television stations collectively produce approximately 1,200 hours of local news every week.

Freedom of the Press Foundation is a non-profit organization dedicated to helping support and defend public-interest journalism. Freedom of the Press Foundation advocates for transparency and accountability in an effort to preserve the rights guaranteed to the press under the First Amendment and strengthen the public’s right to know. As part of that mission, the organization has served as amicus curiae in cases addressing First Amendment issues raised by emerging technologies and government surveillance in the federal courts.

Freedom to Read Foundation is an organization established by members of the American Library Association to promote and defend First Amendment rights, foster libraries as institutions that fulfill the promise of the First Amendment, support the rights of libraries to include in their collections and make available to the public any work they may legally acquire, establish legal precedent for the freedom to read of all citizens, protect the public against efforts to suppress or censor speech, and support the right of libraries to collect and individuals to access information that reflects the diverse voices of a community so that every individual can see themselves reflected in the library’s materials and resources.

The Institute for Policy Innovation (“IPI”) is a 501(c)(3) nonprofit public policy research institute founded in 1987 to propose solutions to public policy problems based on the principles of individual liberty, constitutional governance, free markets and limited government. First Amendment speech issues fall within the scope of the public policy issues IPI includes in its issue portfolio.

International Center for Law & Economics (“ICLE”) is a nonprofit academic research organization that promotes governance rooted in the rule of law and the development of economically grounded policies that promote consumer welfare. ICLE scholars have studied and written extensively on the law and economics of the First Amendment and free expression.

The Media Coalition Foundation, Inc. monitors potential threats to free expression, and engages in litigation and education to protect free speech rights, as guaranteed by the First Amendment.

The Media Institute is a nonprofit foundation specializing in communications policy issues. The Institute exists to foster three goals: freedom of speech, a competitive media and communications industry, and excellence in journalism. The Media Institute is one of the country’s leading organizations focusing on the First Amendment and speech-related issues.

The Media Law Resource Center (“MLRC”) is a non-profit association which supports media lawyers and media companies in legal matters. It counts as members some 125 media companies, including the largest print, broadcast and digital entities in the United States, as well as over 200 law firms which work in the media law space. The MLRC puts on conferences on media law issues, distributes daily, monthly and quarterly publications, presents webinars on timely legal and journalistic topics, and gets involved in policy initiatives, generally in support of First Amendment rights and free expression.

Motion Picture Association, Inc. (“MPA”) is a not-for-profit trade association founded in 1922. The MPA serves as the voice and advocate of the film and television industry, advancing the business and art of storytelling, protecting the creative and artistic freedoms of storytellers, and supporting the creative ecosystem that brings entertainment and inspiration to audiences worldwide.

National Coalition Against Censorship (“NCAC”) is an alliance of 59 national non-profit literary, artistic, religious, educational, professional, labor, and civil liberties groups that are united in their commitment to freedom of expression. NCAC works to protect the First Amendment rights of artists, authors, students, readers, and the general public. Since its founding, it has had a special interest in supporting artistic expression that is threatened with suppression because of its sexual content. The views presented in this brief are those of NCAC and do not necessarily represent the views of each of its participating organizations.

National Press Photographers Association (“NPPA”) is a 501(c)(6) not-for-profit organization dedicated to the advancement of visual journalism in its creation, editing, and distribution. NPPA’s members include video and still photographers, editors, students, and representatives of businesses that serve the visual journalism community. Since its founding in 1946, the NPPA has been the Voice of Visual Journalists, vigorously promoting the constitutional and intellectual property rights of journalists as well as freedom of the press in all its forms, especially as it relates to visual journalism.

The News/Media Alliance represents news and media publishers, including nearly 2,000 diverse news and magazine publishers in the United States—from the largest news publishers and international outlets to hyperlocal news sources, from digital-only and digital-first to print news. Alliance members account for nearly 90% of the daily newspaper’s circulation in the United States. Since 2022, the Alliance is also the industry association for magazine media. It represents the interests of close to 100 magazine media companies with more than 500 individual magazine brands, on topics that include news, culture, sports, lifestyle and virtually every other interest, avocation or pastime enjoyed by Americans. The Alliance diligently advocates for news organizations and magazine publishers on issues that affect them today.

Penguin Random House LLC publishes adult and children’s fiction and nonfiction in print and digital trade book form in the U.S. The Penguin Random House global family of companies employ more than 10,000 people across almost 250 editorially and creatively independent imprints and publishing houses that collectively publish more than 15,000 new titles annually. Its publishing lists include more than 60 Nobel Prize laureates and hundreds of the world’s most widely read authors, among whom are many investigative journalists covering domestic politics, the justice system, business and international affairs.

The Reporters Committee for Freedom of the Press is an unincorporated nonprofit association. The Reporters Committee was founded by leading journalists and media lawyers in 1970 when the nation’s news media faced an unprecedented wave of government subpoenas forcing reporters to name confidential sources. Today, its attorneys provide pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists.

The Tully Center for Free Speech began in Fall, 2006, at Syracuse University’s S.I. Newhouse School of Public Communications, one of the nation’s premier schools of mass communications.

INTRODUCTION

This case is about a good law employed in bad faith to punish constitutionally protected speech. Netflix has faced two misguided prosecutions and five indictments under Tex. Penal Code §§ 43.262[3] and 43.25 for its distribution of Cuties, an award-winning film[4] that addresses important societal issues such as the influence of social media and cultural heritage. As shown by extensive delays, a lack of probable cause, dubious motives, and selective use of evidence, the District Attorney prosecuted Netflix in bad faith and deprived it of an immediate remedy in state court. Thus, this is the rare case where it is appropriate for federal courts to fulfill their duty to protect

constitutional rights, including those under the First Amendment, and put an end to an unjustified state prosecution.

Cuties is a French film that tells the story of an 11-year-old Senegalese immigrant, Amy, torn between her family’s conservative culture and the more progressive French society. It explores the challenges of childhood and the pressures of the rapidly rising influence of social media. Amy’s experience, which is shared by girls and boys throughout the world, serves as a reminder of the struggles of adolescence, especially in modern times, and has sparked many productive conversations among adults and children alike.

Amici acknowledge the critical importance of enforcing child pornography statutes. But rather than foster the goal of protecting minors from harm, the continued criminal prosecution of Netflix would result not only in censorship of significant issues of public concern about children and uncomfortable truths that are discussed in the film, but also broader chilling effects on protected speech. Without the ability to seek redress for baseless prosecutions in federal court, critical constitutional rights would be curbed, and a vast array of speech would be chilled for fear of being similarly prosecuted. This Court should thus affirm the District Court’s well-reasoned decision vindicating Netflix’s First Amendment rights and, by extension, those of others who wish to speak on controversial topics of public interest.

[1] Pursuant to Fed. R. App. P. 29(a)(4), Amici certify that counsel for Amici authored this brief in whole; that no counsel for a party authored this brief in any respect; and that no person or entity, other than amicus and its counsel, contributed monetarily to this brief’s preparation or submission.

[2] All internet citations in this brief were last visited June 7, 2023.

[3] Soon after being charged under § 43.262, the statute was held unconstitutional. See Ex parte Lowry, 639 S.W.3d 151, 169 (Tex. App.—Houston [1st Dist.] 2021, pet. granted).

[4] Cuties received the “Directing Award” at the Sundance Film Festival in January 2020 and the “Best First Film” and “Best Female Newcomer” awards at the César Film Festival in France, among others. ROA.1537.

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Innovation & the New Economy

Twitter v. Taamneh: Intermediary Liability, The First Amendment, and Section 230

TOTM After the oral arguments in Twitter v. Taamneh, Geoffrey Manne, Kristian Stout, and I spilled a lot of ink thinking through the law & economics of intermediary liability . . .

After the oral arguments in Twitter v. Taamneh, Geoffrey Manne, Kristian Stout, and I spilled a lot of ink thinking through the law & economics of intermediary liability and how to draw lines when it comes to social-media companies’ responsibility to prevent online harms stemming from illegal conduct on their platforms. With the Supreme Court’s recent decision in Twitter v. Taamneh, it is worth revisiting that post to see what we got right, as well as what the opinion could mean for future First Amendment cases—particularly those concerning Texas and Florida’s common-carriage laws and other challenges to the bounds of Section 230 more generally.

Read the full piece here.

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Innovation & the New Economy