Showing 9 of 73 Publications

An L&E Defense of the First Amendment’s Protection of Private Ordering

TOTM In his recent concurrence in Biden v. Knight, Justice Clarence Thomas sketched a roadmap for how to regulate social-media platforms. The animating factor for Thomas, . . .

In his recent concurrence in Biden v. Knight, Justice Clarence Thomas sketched a roadmap for how to regulate social-media platforms. The animating factor for Thomas, much like for other conservatives, appears to be a sense that Big Tech has exhibited anti-conservative bias in its moderation decisions, most prominently by excluding former President Donald Trump from Twitter and Facebook. The opinion has predictably been greeted warmly by conservative champions of social-media regulation, who believe it shows how states and the federal government can proceed on this front.

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Innovation & the New Economy

Committee Prepares to Grill Tech CEOS, but It Is the First Amendment That Could Get Torched

TOTM In what has become regularly scheduled programming on Capitol Hill, Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey, and Google CEO Sundar Pichai will be . . .

In what has become regularly scheduled programming on Capitol Hill, Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey, and Google CEO Sundar Pichai will be subject to yet another round of congressional grilling—this time, about the platforms’ content-moderation policies—during a March 25 joint hearing of two subcommittees of the House Energy and Commerce Committee.

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Innovation & the New Economy

Ben Sperry on online speech

Presentations & Interviews ICLE Associate Director of Legal Research Ben Sperry joined Chetachi Egwu’s MediaScope podcast to talk about online speech, the First Amendment, and federal and state . . .

ICLE Associate Director of Legal Research Ben Sperry joined Chetachi Egwu’s MediaScope podcast to talk about online speech, the First Amendment, and federal and state efforts to regulate speech on platforms. The full episode can be played below.

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Innovation & the New Economy

The Forgotten Strand of the Anti-Monopoly Tradition in Anglo-American Law

TOTM Admirers of the late Supreme Court Justice Louis Brandeis and other antitrust populists often trace the history of American anti-monopoly sentiments from the Founding Era . . .

Admirers of the late Supreme Court Justice Louis Brandeis and other antitrust populists often trace the history of American anti-monopoly sentiments from the Founding Era through the Progressive Era’s passage of laws to fight the scourge of 19th century monopolists. For example, Matt Stoller of the American Economic Liberties Project, both in his book Goliath and in other writings, frames the story of America essentially as a battle between monopolists and anti-monopolists.

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Antitrust & Consumer Protection

Conflict of Interest in Prosecuting Police Officers: Examining the Incentives Facing District Attorneys

TOTM High-profile cases like those of Michael Brown in Ferguson, Missouri, and Breonna Taylor in Louisville, Kentucky, have garnered attention from the media and the academy . . .

High-profile cases like those of Michael Brown in Ferguson, Missouri, and Breonna Taylor in Louisville, Kentucky, have garnered attention from the media and the academy alike about decisions by grand juries not to charge police officers with homicide.

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The Dishonesty of Conservative Attacks on Section 230

TOTM President Donald Trump has repeatedly called for repeal of Section 230. But while Trump and fellow conservatives decry Big Tech companies for their alleged anti-conservative bias, . . .

President Donald Trump has repeatedly called for repeal of Section 230. But while Trump and fellow conservatives decry Big Tech companies for their alleged anti-conservative bias, including at yet more recent hearings, their issue is not actually with Section 230. It’s with the First Amendment.

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Innovation & the New Economy

The Dangerous Implications of Changing Antitrust Presumptions

TOTM One of the key recommendations of the House Judiciary Committee’s antitrust report which seems to have bipartisan support (see Rep. Buck’s report) is shifting evidentiary burdens of proof . . .

One of the key recommendations of the House Judiciary Committee’s antitrust report which seems to have bipartisan support (see Rep. Buck’s report) is shifting evidentiary burdens of proof to defendants with “monopoly power.” These recommended changes are aimed at helping antitrust enforcers and private plaintiffs “win” more. The result may well be more convictions, more jury verdicts, more consent decrees, and more settlements, but there is a cost.

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Antitrust & Consumer Protection

Ending Qualified Immunity

TL;DR Criminal justice reform efforts should focus on ending qualified immunity and restoring the constitutional balance between empowering officers to protect the public while also deterring violations of civil liberties. 

“Qualified immunity” is a doctrine that protects government officials, such as police officers, from civil rights lawsuits when they are acting in their official capacity. Criminal justice reform efforts should focus on ending qualified immunity and restoring the constitutional balance between empowering officers to protect the public while also deterring violations of civil liberties. 

The Debate…

In an age of unrest due to recorded police misconduct, there are calls for criminal justice reform. The debate has primarily focused on slogans, such as Black Lives Matter versus Blue Lives Matter, or Defund the Police versus Defend the Police. While there have been many proposals for outlawing particular police practices and increasing training, one of the most important aspects of holding police accountable for misconduct has received more limited attention: civil rights litigation. 

But… 

Civil rights lawsuits have limited ability to hold officers accountable due to the doctrine of qualified immunity. In a civil rights lawsuit, the goal is to make the victim (or their families) of a rights violation whole by awarding monetary damages. But in many cases, qualified immunity protects police from liability by imposing nearly insurmountable procedural hurdles. This protects a large swath of police misconduct from accountability by civil rights lawsuits.

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The First Amendment and Section 230: Protecting Free Speech on the Internet

TL;DR The First Amendment and Section 230 immunity work together to protect free speech on the Internet. Attempts at Section 230 reform based on how online platforms use their editorial discretion will run into Constitutional limitations.

The First Amendment and Section 230 immunity work together to protect free speech on the Internet. Attempts at Section 230 reform based on how online platforms use their editorial discretion will run into Constitutional limitations.

Background…

Complaints of anti-conservative bias by major online platforms have led to proposals to modify Section 230 immunity in ways that target the manner in which platforms moderate user-generated content. Proponents contend that absent some sort of liability these dominant digital “gatekeepers” of news and social opinion will skew their content-moderation practices to reflect their own political preferences, dishonestly labeling conservative views as offensive or otherwise in violation of the platform’s terms of use. 

But

Online platforms have a First Amendment right to adopt whatever content standards they choose. With very few exceptions the government may not mandate speech. But a law requiring online platforms to adopt a particular set of content moderation practices — say, to maintain a “balance” of political views — would do just that. Conditioning Section 230 immunity on online platforms giving up their right to editorial discretion would be unlikely to survive the strict standard of review to which such government regulation of speech would be subjected by the courts.

Download the tl;dr explainer PDF here

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Antitrust & Consumer Protection