Social Media Accountability for Terrorist Propaganda

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s § 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that § 230 does not bar private parties from recovery if they can prove that a social media company had received complaints about specific webpages, videos, posts, articles, IP addresses, or accounts of foreign terrorist organizations; the company’s failure to remove the material; a terrorist’s subsequent viewing of or interacting with the material on the website; and that terrorist’s acting upon the propaganda to harm the plaintiff. This Article argues that irrespective of civil immunity, the First Amendment does not limit Congress’s authority to impose criminal liability on those content intermediaries who have been notified that their websites are hosting third-party foreign terrorist incitement, recruitment, or instruction. Neither the First Amendment nor the Communications Decency Act prevents this form of federal criminal prosecution. A social media company can be prosecuted for material support of terrorism if it is knowingly providing a platform to organizations or individuals who advocate the commission of terrorist acts. Mechanisms will also need to be created that can enable administrators to take emergency measures, while simultaneously preserving the due process rights of internet intermediaries to challenge orders to immediately block, temporarily remove, or permanently destroy data

Terrorist Incitement on the Internet

I organized this symposium to advance understanding of how terrorist communications drive and influence social, political, religious, civil, literary, and artistic conduct. Viewing terrorist speech through wide prisms of law, culture, and contemporary media can provide lawmakers, adjudicators, and administrators a better understanding of how to contain and prevent the exploitation of modern communication technologies to influence, recruit, and exploit others to perpetrate ideologically driven acts of violence. Undertaking such a multipronged study requires not only looking at the personal and sociological appeals that extreme ideology exerts but also considering how to create political, administrative, educational, and economic conditions to effect positive change at micro and macro levels. The deep analysis that a symposium provides can paint a more comprehensive picture to explain the effectiveness or ineffectiveness of various memes, videos, interactive websites, group chat rooms, and blogs that justify, glorify, or incite violence. Moreover, understanding the operation of terrorist groups on the internet can help to explain their organizational hierarchies

Due Process in Civil Commitments

In one of its most controversial decisions to date, United States v. Comstock, the Roberts Court upheld a federal civil commitment statute requiring only an intermediate burden of proof. The statute provided for the postsentencing confinement of anyone proven by clear and convincing evidence to be mentally ill and dangerous. The law relied on a judicial standard established more than thirty years before. The majority in Comstock missed the opportunity to reassess the precedent in light of recent psychiatric studies indicating that the ambiguity of available diagnostic tools can lead to erroneous insanity assessments and mistaken evaluations about patients’ likelihood to engage in dangerous activities. I contend that the clear and convincing standard of proof inadequately protects patients’ due process rights because civil commitment hearings can result in severe deprivations of liberty. Commitments of felons whose continued dangerousness remains in doubt raises significant due process concerns. Even more troubling is the civil commitment of individuals with no criminal records of violence to whom the clear and convincing standard also applies. In this Article, I argue that the beyond a reasonable doubt standard of proof is needed to closely scrutinize evidence of mental disease and dangerousness. The multidisciplinary approach I pursue offers a unique framework for resolving a social problem that has been inadequately described in extant legal writings. I reflect on Supreme Court precedents in light of psychiatric studies about the limited reliability of emergency commitments and set out a standard adopted from criminal proceedings to better prevent unnecessary mental hospitalization

Government Speech and the Establishment Clause

This Article argues that the Establishment Clause prohibits public actors or agencies from adopting religious messages and symbols. The limitation is explicitly stated in the First Amendment, which restricts government from encroaching on religious belief and ritual. Separation between private and public spheres protects thought, belief, and practice under the Free Exercise Clause and prevents official orthodoxy under the Establishment Clause. One religion clause requires government to respect deeply held personal beliefs that are parallel to beliefs in God, while the other clause prohibits government from participating in sectarian conduct. Government speech can describe, explain, contextualize, and characterize religious rituals without actually engaging in them. While the Establishment Clause prohibits government intrusion into individual autonomy, the Free Exercise Clause safeguards beliefs of persons but not of government entities. The Article first defines government speech, distinguishes it from sincerely held beliefs of individuals who work in government, and discusses examples of legitimate public communications about religion. It further critiques cases arising from claims that government speech violated the Establishment Clause by having religious monuments on public property and organizing sectarian prayer before legislative sessions. Next, the Article reviews current Establishment Clause jurisprudence and the resulting tests used to evaluate governmental speech, asserting that the existing tests should be thought of as levels of scrutiny. It also explains whether and how each test engages the overarching question of whether the government speech is religious or about religion, the core distinction between government participation in and government tolerance of religion. Finally, the Article advocates for the (now unwisely overturned) excessive government entanglement test of Lemon v. Kurtzman as the best mode of analysis of these two contextual features of the First Amendment

Hate in Cyberspace: Regulating Hate Speech on the Internet

The speed at which information can be spread throughout the United States and other countries has been greatly enhanced by the Internet. This computer-driven, technological medium consists of various modes of transmission, including discussion groups, interactive pages, and mail services. A wide variety of pictorial, auditory, and written information is available on the Internet. Persons with disparate goals can access and affect large audiences through it. Both those seeking social improvement and those promoting racist violence can now increase the magnitude, diversity, and location of their audiences. Persons advancing democratic ideals and those inclined to exclusionary elitism can use e- mails and electronic chat rooms to communicate with like-minded individuals located in different cities and in other lands

Enforcement of the Reconstruction Amendments

This Article analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement. Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme Court and Congress in achieving aspirations of the Second Founding. The framework that emerges requires the judiciary to defer to legitimate legislative functions in enforcing racial equality, dignitary justice, and access to the ballot box. Congress’s discretion extends to safeguards for fundamental rights, civil liberties, and political representation. Rational basis review is appropriate when Congress advances autonomy, equality, and franchise. However, when courts safeguard equal enjoyment of fundamental rights against legislative encroachments, those three amendments require heightened judicial scrutiny of adverse state actions

Due Process in Civil Commitments

In one of its most controversial decisions to date, United States v. Comstock, the Roberts Court upheld a federal civil commitment statute requiring only an intermediate burden of proof. The statute provided for the postsentencing confinement of anyone proven by clear and convincing evidence to be mentally ill and dangerous. The law relied on a judicial standard established more than thirty years before. The majority in Comstock missed the opportunity to reassess the precedent in light of recent psychiatric studies indicating that the ambiguity of available diagnostic tools can lead to erroneous insanity assessments and mistaken evaluations about patients’ likelihood to engage in dangerous activities. I contend that the clear and convincing standard of proof inadequately protects patients’ due process rights because civil commitment hearings can result in severe deprivations of liberty. Commitments of felons whose continued dangerousness remains in doubt raises significant due process concerns. Even more troubling is the civil commitment of individuals with no criminal records of violence to whom the clear and convincing standard also applies. In this Article, I argue that the beyond a reasonable doubt standard of proof is needed to closely scrutinize evidence of mental disease and dangerousness. The multidisciplinary approach I pursue offers a unique framework for resolving a social problem that has been inadequately described in extant legal writings. I reflect on Supreme Court precedents in light of psychiatric studies about the limited reliability of emergency commitments and set out a standard adopted from criminal proceedings to better prevent unnecessary mental hospitalization

Hate in Cyberspace: Regulating Hate Speech on the Internet

The speed at which information can be spread throughout the United States and other countries has been greatly enhanced by the Internet. This computer-driven, technological medium consists of various modes of transmission, including discussion groups, interactive pages, and mail services. A wide variety of pictorial, auditory, and written information is available on the Internet. Persons with disparate goals can access and affect large audiences through it. Both those seeking social improvement and those promoting racist violence can now increase the magnitude, diversity, and location of their audiences. Persons advancing democratic ideals and those inclined to exclusionary elitism can use e- mails and electronic chat rooms to communicate with like-minded individuals located in different cities and in other lands