First Amendment Protection for Online Platforms

The United States is home to some of the largest online platforms in the world, in part due to Section 230 of the Communications Decency Act of 1996. Section 230 provides platforms with extraordinarily broad immunity from lawsuits arising from user content. The statute is under unprecedented scrutiny, and Congress already has amended the statute to weaken its protections. This Article examines the First Amendment protections that would remain for online platforms if Congress were to entirely eliminate Section 230. After reviewing pre-Internet cases involving offline distributors such as bookstores and newsstands, this Article concludes that although the First Amendment would offer some protections to platforms, these protections would be limited and likely would require platforms to significantly alter their operations and business models.     

论受教育权的可诉性

我国法律对受教育权是否具有可诉性规定模糊 ,实践中存在许多不利于保护公民受教育权的做法。分析受教育权难以得到司法救济的原因 ,指出确立受教育权可诉制度的必要性及现实意义     

The Right to Be Racist in College: Racist Speech,White Institutional Space,and the First Amendment

Throughout the post–civil rights era, colleges and universities across the United States have periodically experienced explicitly racist incidents on their campuses. From the hurling of racial slurs at students of color, to the hanging of nooses on campus, to students donning Ku Klux Klan outfits or throwing “ghetto” parties that caricaturize communities of color, these incidents challenge the notion that modern racism has changed to a more subtle form, referred to as color‐blind racism. We place these incidents within a broader context of race and institutions, suggesting a connection between overt racist expressions and the more covert elements of neoliberal color‐blind racism. Through a critical discourse analysis of news stories about these incidents, the website of the Foundation for Individual Rights in Education, and the controlling legal cases involving racist expression on campuses, we suggest that explicitly racist incidents operate in tandem with neoliberal educational policies and color‐blind racism to mark and reinscribe colleges and universities as white institutional spaces.     

The Checking Value in First Amendment Theory

The author examines the sources and premises of the idea that free expression has value in part because of the function it performs in checking the abuse of official power (the "checking value") and explores how this checking value difyers from those values that have dominated First Amendment analysis since 1919. In addition, the author traces in some detail the uneven influence the checking value has had recently in three areas of First Amendment adjudication: civil actions f o r defamution; disputes arising from efforts by journalists to protect or establish relationships with news sources; and claims b y nonjournalists to a constitutional or statutory right to communicate directly to the public over major print or broadcast outlets. The author argues that the checking value must receive open, systematic consideration if it is to play a consistent part in adjudication and speculates on how such consideration of the checking value might help one think about a wide range of additional First Amendment questions.     

Unmasking Jane and John Doe: Online Anonymity and the First Amendment

When individuals turn on the television, listen to the radio, or purchase newspapers, they are not forming contractual relationships. Yet, almost without exception, online readers, viewers and listeners are required to enter into “terms of use” contracts. These ubiquitous agreements are generally unfavorable for the user in areas of intellectual property rights and privacy. In addition, the terms often restrict users’ behavior and their ability to litigate any disputes with a Web site. In analyzing the implications of contracts for Web site users, this article examines whether courts have recognized a distinction between online consumers, interactive users, and “passive media users”—online readers, listeners or viewers who engage in little, if any, of the activity traditionally required to form contracts. Case law reveals a frequent de facto exemption from online agreements for passive media users, but not highly interactive users. This exemption could be formally recognized to benefit all parties to a contract.     

Forgetting the First Amendment: How Obscurity-Based Privacy and a Right to Be Forgotten Are Incompatible with Free Speech

The privacy of personal information on the Internet has received special attention recently in both the United States and the European Union, and legislative and regulatory proposals regarding the reform privacy law abound. This article examines several prominent theories that undergird the American First Amendment and attempts to demonstrate that the concept of a privacy interest arising out of the obscurity of information, as a social normative principle, and the right to be forgotten, as a legal mechanism concerned with the European idea of dignity-based privacy, are fundamentally at odds with the right of freedom of speech.     

对我国公民受教育权平等实现的审视

我国对公民受教育权的平等实现保护力度不够,这种情况不利于维护我国宪法的权威和维护稳定的法制秩序,甚至会影响整个国家教育水平和全社会公民整体素质的提高,也不符合平等受教育权保护的国际化潮流。从造成这种情况大量存在的原因出发,完善宪法、宪法性法律、加强司法保护工作等是必不可少的措施,但归根结底,发展经济,增加教育投入是加强对公民受教育权保护的根本措施。     

审判公开思想与修订《民事诉讼法》的几个基本关系定位

审判公开不仅具有向社会公开的要求,更具有向当事人作实质性公开的内涵,正是这一反秘密审判、促进诉讼民主的本质内涵,使之应当成为我国修订《民事诉讼法》的指导思想和基本原则。以此为前提,审判公开思想对于修订《民事诉讼法》的具体指导作用和意义表现在三个方面:一是促进对当事人诉讼权利和诉讼义务规定的完善;二是促成对辩论原则法律地位、作用重新定位和对辩论原则具体内容的完善;三是促进民事诉讼程序按照审判公开的理念予以完善。     

No Right to Classified Public Whistleblowing

Given the crucial role unauthorized disclosures can play in uncovering grave government wrongdoing, it makes sense to search for a defense of justified cases of what I call “classified public whistleblowing.” The question that concerns me is what form such a defense should take. The main claim will be a negative one, namely, that a defense of whistleblowing cannot be based on individual rights, be they legal or moral, though this is indeed the most commonly proposed defense. In closing, I will outline a more appealing alternative, namely, a justification defense.     

论公务员的抵制权

《公务员法》第54条规定公务员在执行上级的决定或者命令时,可以提出意见或者不服从,确立了公务员的抵制权,并从而建立了执行异议制度和不服从制度。这对于保护公务员合法权益来说具有重要的意义。但是其规定的这两种制度还存在着一定的局限性。     

The Contentious American Debate: The First Amendment and Internet-based Hate Speech

This essay reviews the debate over what constitutes hate speech and whether or not such speech is protected by the American First Amendment. First, the concept of white racialism and white supremacy is defined and illustrated. Then after a brief discussion of the legal debate, the nature and problematic definition(s) of hate speech is presented. The unique speech environment of the internet is reviewed alongside attempts to limit and censor topics available on the internet. The arguments for and against restricting first amendment protection are discussed, with a focus on Michael Israel's five criteria for withdrawing first amendment protections. The work concludes with a discussion of the difficulty in constraining discourse on the internet.     

The First Amendment Originalism of Justices Brennan,Scalia and Thomas

Originalism holds that the U.S. Constitution should be interpreted based on the original intent or original meaning of the Constitution, that original intent is not only relevant but authoritative, and that judges are obligated to follow the framers’ original intent and meaning when resolving cases. Normative questions surrounding originalism's merit have produced one of the great constitutional debates of recent decades. This article compares and contrasts the First Amendment originalism of three justices: William Brennan, Antonin Scalia and Clarence Thomas. It examines every First Amendment opinion prior to the 2011 term written by the justices that contains originalism. The article concludes that all three justices used originalism to support a wide variety of arguments in a wide variety of First Amendment cases. In addition, the analysis demonstrates that Justices Scalia and Thomas more frequently supported the First Amendment in opinions in which they used originalism, a finding that contradicts the idea that originalism is associated with judicial restraint. The article contends that, with a few minor exceptions, none of the justices used originalism in a consistent way. Finally, the article offers perspectives on originalism's influence on current First Amendment jurisprudence and the limitations of using originalism for constitutional interpretations.     

Protecting Childhood: Rights,Social Goals and the First Amendment in the Context of the Child Online Protection Act

In Dun & Bradstreet v. Greenmoss Builders, the Supreme Court of the United States reintroduced a subject matter test into libel law, holding that private figures defamed in the discussion of matters of private concern did not need to prove actual malice to collect punitive or presumed damages. The sweeping language of some of opinions, coupled with the Supreme Court's references to subject matter in subsequent cases, led to confusion over whether and how constitutional protections apply in private plaintiff-private issue cases. This article explores how lower federal and state appellate courts have interpreted Dun & Bradstreet and offers three alternate solutions to appropriately balance the First Amendment rights of defendants with the reputational interests of private plaintiffs in cases arising from the discussion of matters of private concern.     

First Amendment influence in argentine republic law and jurisprudence

The First Amendment to the United States Constitution has influenced the development of freedom of expression in a number of countries, including the Argentine Republic. This article focuses on law as it came to affect mass media beginning with assumptions from the 16th century, when Argentina was under Spanish domination, and continues through the 1853–60 constitutional conventions that marked the initiation of First Amendment influence in Argentine law and jurisprudence. The article explains how the de facto governments that ruled Argentina from 1862 to 1983 gave direction to law and court decisions affecting the mass media, including film censorship, press penal responsibility, prior restraint, state of siege and the right to reply. The article concludes by analyzing how these laws and court decisions have influenced media and Argentine society, especially in fostering self‐censorship.     

In The Shadow Of Terror: The Illusive First Amendment Rights Of Aliens

Despite a sustained period of peace and prosperity in the United States, Congress has enacted considerable anti-terrorism legislation, which-like past laws based in fear of foreign threats to the national security-erodes freedom of expression. This article provides a political, historical and legal background before examining this legislation and its application in cases affecting the rights of First Amendment claimants. The article finds that most courts, including the United States Supreme Court, have tended to use a formulaic strict scrutiny analysis of the legislation that endorses the government's position that, for example, the Antiterrorism and Effective Death Penalty Act of 1996, is a content-neutral response to the important interest in reducing the threat of terrorism. The article argues that the courts instead should adopt an analysis based on the real intent and discriminatory effects of the law to find it is impermissibly content based, overbroad and vague.