Lies and Free Speech Values

In the short time since Seana Shiffrin published Speech Matters, ‘fake news’ and ‘alternative facts’ have become full-blown phenomena, and various forces have destabilized the line between truth and falsity. Now more than ever, Shiffrin’s project is one of urgent importance. This essay examines Chapter Four of Speech Matters, which asks the crucial question: when and how may the law regulate lies? Shiffrin concludes that the law could regulate lies much more often than it does, though sometimes it ought not to for pragmatic reasons. For all of Shiffrin’s masterful explication, there is perhaps more to say in the space between Chapter Three’s moral account of free speech and Chapter Four’s legal one. Setting existing doctrine aside, how would a society translate the moral principles of Chapter Three into a system of law? Which worries are intrinsic to free speech, and which are purely pragmatic? In other words, what does a thinker-based account of law look like?

     

Judicial Epistemology of Free Speech Through Ancient Lenses

The article is the author’s endeavor to reconstruct the semiotic conflict in the transatlantic legal appraisal of hate speech (between the USA and Europe) through Ancient Greek concepts of παρρησία (parrhēsia) and ισηγορία (isēgoria). The US Supreme Court case law on the First Amendment to American Constitution is, therefore, counter-balanced vis-à-vis la jurisprudence de Strasbourg on Article 10 of the European Convention of Human Rights. The author suggests that an adequate comprehension of the contemporary constitutional concepts of the right to free speech in Western democracies is deceptive without a thorough analysis of its genealogy in the Ancient rhetorical cradle.     

微博言论的自由与规制

微博是网络社会新兴的交际和信息集散的重要方式,一经出现,便得到广大网民的青睐。其价值在于它体现了公民言论自由的追求,成为公民自由表达的平台。作为一种新的言论载体,微博在言论自由的同时,又存在着危及隐私权的问题,有可能导致信息泛滥、谣言蜂起,有着负面的影响。在一个追求法治的国家里,言论自由必须依法实现,用法律来构筑言论自由的边界。因此,在保障微博言论自由的同时,又必须使其接受法律规制。     

Cause and Effect: The Free Speech Transformation as Scientific Revolution

The model of direct, cause-and-effect speech was common not only in the social sciences early in the twentieth century, but also in the law. Speech-restrictive measures were written and judged with the belief that words may be the explicit cause of undesirable behavior. This article examines the transformation in free speech doctrine and its parallel track with the emergence of the social sciences. At the core of each was a change from direct- to limited-effects frameworks. It is posited that the paradigm shift in the law qualifies as a scientific revolution given (1) how it comports with the model explained by Thomas Kuhn in The Structure of Scientific Revolutions, and (2) its adherence to scientific method.     

Free Speech,Crime, and the Challenge of Advancing Technology

Speech technology has developed rapidly and has taken many different forms. One form of this technology, the internet, poses a difficult challenge for society because of the way that it provides children with easy access to various forms of 'indecent' material. US courts have struggled with the problem of how to reconcile the internet, and other more advanced technologies, with traditional First Amendment free speech doctrine. For many years, US courts distinguished between so-called 'traditional forms' of technology, and other forms of technology, in particular broadcast technology. While the courts have always provided strong protections for traditional forms of technology, they have provided less protection to broadcast technology. Importantly, the internet challenges the dichotomy between 'traditional' technology and broadcast technology, and has forced the US Supreme Court to reconsider its precedents relating to technology. This reconsideration has made it more difficult to regulate the internet for the 'health, welfare and morals' of society. This paper analyses the scope of government authority in light of recent precedent.     

治安处罚中“诽谤”认定的言论自由考量

言论自由作为一项宪法基本权利,是一个社会极为重要的品格与价值.但言论自由并不是一项绝对化权利,而是一种可克减权利,其行使受到名誉权的限制.近年来,我国公安机关依据治安管理处罚中“诽谤”的规定,在很大程度上维护了公民的名誉权,但与此同时, “诽谤”的滥用也在一定程度上限制了公民的言论自由.究其根源,即是在对“诽谤”的认定中,言论自由是否应当被纳入考量范围.据此本文基于言论自由的视角,从法理上平衡名誉权与言论自由的需要,法律上言论自由条款的神圣地位,事实上顺应国际潮流的趋势三个层面论证了“诽谤”的认定离不开言论自由的考量.     

Spatial Frameworks and the Management of Dissent: From Parks to Free Speech Zones

The space in which dissent is performed, and the way that space is used to manage dissent, has generally been understudied in the legal literature. This article examines how spatial frameworks—popular ideas about the importance of space to democracy—have influenced legal decisions about the management of dissent. Three spatial frameworks, Property, Place and Planning, are identified. It is suggested that each framework brings with it assumptions about the value of dissent to society, the use of public space for expressive purposes, and the amount of expressive freedom citizens enjoy in the realization of democracy. Through an examination of the historical transition from Property, through Place, to today's Planning Framework, this article demonstrates how different frameworks have influenced the management of dissent. It concludes by arguing that today's Planning Framework, as played out in the creation of free speech zones, undervalues the importance of dissent to society.     

Free Speech Meets the Publicity Tort: Transformative Use Analysis in Right of Publicity Law

The intersection of intellectual property law and First Amendment concerns has become increasingly contested. The right of publicity has proven particularly difficult to reconcile with free speech values. Recently, some courts have begun importing a “transformative use” approach from copyright law to reconcile tensions between publicity rights and free expression. This article analyzes the problems with the transformative use doctrine and suggests the outlines of an alternative approach.     

The Digital Millennium Copyright Act of 1998: A Proposed Amendment to Accommodate Free Speech

Title II of the Digital Millennium Copyright Act of 1998 limits liability for copyright infringement for online service providers if they remove from their services material posted by users that copyright holders allege infringes on their rights. This article argues that the Title provides too much incentive to OSPs to remove the material, creating an imbalance in the "fair-use" tradition of copyright law and threatening freedom of speech. The article suggests that the law be amended to require that copyright holders prove infringement before OSPs are made liable for infringement.     

"依法执政"的哲理思考

执政是掌管国家权力,现代国家的统治是以政党的形式来实现的,民主国家的执政者必须依法执政,中国共产党只有依法执政,才能执好政,才能长期执政。     

Spam and the First Amendment Redux: Free Speech Issues in State Regulation of Unsolicited Email

The scourge of email spam is almost forty years old, and, yet, it does not appear to be disappearing. In fact, spam has expanded to other ubiquitous Internet platforms including social media Web sites. It seems, then, that the many state anti-spam statutes have been unsuccessful in regulating the sending of unsolicited commercial email, but not for lack of trying. This article examines the First Amendment challenges to state anti-spam laws.     

Protecting Children While Silencing Them: The Children's Online Privacy Protection Act and Children's Free Speech Rights

In 1998, Congress passed the first law protecting the privacy of individuals on the Internet. The Children's Online Privacy Protection Act (COPPA) restricts the online collection of personal information from children aged 12 or younger. Under the law, Web sites that maintain chat rooms directed at children must either condition a child's participation on the consent of a parent or guardian or monitor the chat room and censor references to personal information. This article examines whether COPPA's chat room restrictions infringe on the free speech rights of children. The examination finds that aspects of the chat room restrictions are constitutionally suspect because it is questionable whether the parental consent requirement is narrowly tailored.     

Mosaic Theory and Cyberharassment: Using Privacy Principles to Clarify the Law of Digital Harms and Free Speech

The Supreme Court of the United States, in the 2012 case United States v. Jones, laid a jurisprudential foundation for using mosaic theory to identify and address harms caused when innocuous bits of information are aggregated and used to invade the privacy of a targeted individual. Although mosaic theory has been applied almost exclusively in Fourth Amendment privacy cases, information mosaics can be used to facilitate online harassment. However, courts have not articulated frameworks for recognizing informational harms caused by mosaics. Additionally, although state cyberharassment laws exempt constitutionally protected informational uses from prosecution, neither state legislatures nor courts have articulated the extent of such protected activities in the cyberharassment context. Mosaic theory provides a useful theoretical and heuristic lens for understanding the limits of informational uses and harms in the cyberharassment context. Using the lens of mosaic theory, this article explores the ways information mosaics can be used to harass targeted individuals. The article concludes that states should pursue incremental modifications to their cyberharassment laws to address the harms caused by persistent, intentional, targeted uses of information mosaics against targets and that they better articulate frameworks for understanding which information-sharing activities are exempt from prosecution.     

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.     

From Public Interest to Private Rights: Free Speech, Liberal Individualism, and the Making of Modern Tort Law

Drawing on John Witt's 2007 book , Patriots and Cosmopolitans: Hidden Histories of American Law, this essay explores the role of the interwar civil liberties movement in rehabilitating the discourse of rights and privatizing the American welfare state. In the years after World War I, most proponents of free speech were hostile to Lochner- era legalism and preferred to pursue civil liberties through legislative and regulatory measures as a means of advancing the public interest. By the onset of World War II, however, they had instead adopted a court-centered strategy that emphasized individual autonomy. The popular and political resonance of their new state-skeptical vocabulary suggests that post-New Deal liberalism in America was a hybrid of classical and Progressive approaches.