Nobody\u27s Fools: The Rational Audience as First Amendment Ideal

Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called core speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the marketplace of ideas metaphor, which has long been a target of criticism among First Amendment scholars. Now, however, cognitive psychology and behavioral economics provide empirical evidence that the assumptions of the rational audience model are demonstrably false in some commonplace settings. This Article nonetheless contends that behavioral economics has not yet made the case for jettisoning the rational audience model in the realm of core speech. As the Supreme Court has recognized, a legal test that looks at the actual effects of speech would be cumbersome and expensive to apply, and would therefore chill speech, but there are even more compelling reasons to adhere to a test focused on the reasonable interpretation of core speech. The rational audience model constrains paternalistic speech regulation, thereby safeguarding individual autonomy and the foundations of democratic self-governance. Moreover, the rational audience model prevents public discourse from being reduced to the level of the least educated or least sophisticated audience member. The model calls on citizens to raise their cognitive capacities to meet the demands of public discourse, and it serves as a check on the government\u27s increasingly powerful ability to drown out other speakers in that discourse. This Article concludes that the rational audience model represents a flawed but worthy idea

Anonymity in Cyberspace: What Can We Learn from John Doe?

This Article examines the evolution of the law governing libel suits against anonymous “John Doe” defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire, and other non-factual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make strategic use of libel law to silence their critics. Meanwhile, plaintiffs who are truly harmed by cybersmears will find little effective recourse in libel law. Though disheartening, the current state of the law may be a testament to the difficulty of balancing speech and reputation in the Internet age

Public Forum 2.0

Social media have the potential to revolutionize discourse between American citizens and their governments. At present, however, the U.S. Supreme Court\u27s public forum jurisprudence frustrates rather than fosters that potential. This article navigates the notoriously complex body of public forum doctrine to provide guidance for those who must develop or administer government-sponsored social media or adjudicate First Amendment questions concerning them. Next, the article marks out a new path for public forum doctrine that will allow it to realize the potential of Web 2.0 technologies to enhance democratic discourse between the governors and the governed. Along the way, this article diagnoses critical doctrinal and conceptual flaws that block this path. Relying on insights gleaned from communications theory, the article critiques the linear model underlying public forum jurisprudence and offers an alternative. This alternative model will enable courts to adapt First Amendment doctrines to social media forums in ways that further public discourse. Applying the model, the article contends that courts should presume government actors have created public forums whenever they establish interactive social media sites. Nevertheless, to encourage forum creation, governments must retain some power to filter their social media sites to remove profane, defamatory, or abusive speech targeted at private individuals. Although some will contend that ceding editorial control is no more necessary in social media than in physical forums, the characteristic disorders of online discourse, and particularly the prevalence of anonymous speech, justify taking this path

Symposium: Truth, Trust and the First Amendment in the Digital Age: Foreword: Whither the Fourth Estate?

As a professor of Media Law, I have devoted my career over the past quarter of a century to the idea that the press plays a special role in our democracy. That role is largely encapsulated by the concept of the press as Fourth Estate – an unofficial branch of government in our scheme of separation of powers that checks the power of the three official branches. In our constitutional scheme, the press is the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news – real news – that enables informed public discus-sion and rational public policy. In this Symposium issue, Professors West and Andersen Jones analyze new ways in which President Trump’s behavior threatens the ability of the press to check the power of the executive branch and provide information vital to democracy

Not a Free Press Court?

The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two decisions in FCC v. Fox Television Stations, both of which avoided the looming First Amendment issue they contained, and the only decision involving new media is Brown v. Entertainment Merchants Ass’n. This essay, taking its cue from Erwin Chemerinsky’s recent lecture, Not a Free Speech Court, attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, the Roberts Court appears committed to protecting unpopular speech, limiting the spread of “medium-specific” First Amendment doctrines to new media, and broadly defining speech of public concern. As far as the media are concerned, however, this good news may be overshadowed by the bad. Not only has the Court sidestepped two opportunities to free broadcast media from the FCC’s content-based regulatory oversight, but, what is worse, the Court appears to see the “Fourth Estate” as little more than a slogan media corporations bandy about to further their selfish interests. In light of these observations, perhaps the media should be grateful that the Roberts Court has addressed few cases directly involving them and should hope the trend continues

Incendiary Speech and Social Media

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the mismatch between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An examination of both incidents reveals flaws in existing First Amendment doctrines. In particular, this examination raises questions about whether underlying assumptions made by current doctrine concerning how audiences respond to incitement, threats, or fighting words are confounded by the new reality social media create

Where\u27s the Harm?: Free Speech and the Regulation of Lies

False factual information has no First Amendment value, and yet the United States Supreme Court has accorded lies a measure of First Amendment protection. The First Amendment imposes something in the nature of a presumption against government interference in public discourse. This presumption is rooted in suspicion of the State\u27s ability to distinguish facts from falsehoods as well as its motives for doing so. However, the presumption against regulation of false speech is not absolute. It can be overcome when verifiably false speech poses a direct threat of harm to individual interests. Unlike other countries, the United States has never justified the regulation verifiably false speech on the grounds of that it poses a generalized threat of dignitary harm. Using Holocaust denial as an example of verifiably false speech this essay poses the question of whether such speech poses a more serious danger than First Amendment jurisprudence typically has acknowledged. In other words, this essay asks: Where\u27s the harm in Holocaust denial? It then turns to the related question: Where\u27s the harm in government suppression of verifiably false speech

Defensor Fidei: The Travails of a Post-Realist Formalist

This Article explores common formalist themes, asking not whether formalism\u27s aspirations are attainable but why formalists still struggle to attain them in the face of sustained attacks by anti-formalists. After briefly sketching the tenets of formalism in Section I, this Article turns to an examination of Summers\u27 post-realist formalism. Finally, this Article probes the philosophical and psychological attractions of formalism and suggests that formalism\u27s promise of stability and order may be essential to the effective functioning of the legal system, even if this promise can never be realized