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First Amendment Panel Discussion

"Fake News" and the First Amendment

Thank you to all those who attended the webinar on March 31, 2021. If you missed it, you can view a recording of it above.

Pundits across the political spectrum agree in their denunciation of fake news. Banning it, however, raises serious constitutional and policy issues. Should the First Amendment protect:

• False statements from Russian bots disseminated to foment divisions and harm our democracy,
• Intentionally false speech fabricated for the sole purpose of generating higher online advertising revenue,
• Demonstrably false statements about public health such as “Masks don’t slow the spread of COVID,”
• False challenges to our electoral process such as “Georgia counted thousands of phony ballots”?

This online panel uses a model state statute banning fake news as a vehicle for exploring these difficult legal issues. Following their presentations, panelists will take questions from the online audience.

CLE: CLE of 1.5 credits has been approved in Ohio. Download CLE Attendance Sheet

Registration

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You're encouraged to read this introduction along with the model state statute and then comment below on whether banning fake news is constitutional and/or a good policy.

Model State Statute Comment

Please review the introduction and the model state statute and leave a comment detailing your thoughts.

Speakers
Helen Norton

Professor Norton's scholarly and teaching interests include constitutional law (especially free speech and equality) and civil rights law. Before entering academia, Professor Norton served as Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice, and as Director of Legal and Public Policy at the National Partnership for Women & Families. She served as leader of President-elect Obama's transition team charged with reviewing the Equal Employment Opportunity Commission, and is frequently invited to testify before Congress and federal agencies on civil rights law and policy issues. She has been honored with the Excellence in Teaching Award on multiple occasions and was appointed a University of Colorado Presidential Teaching Scholar in 2014. She holds a J.D. from Boalt Hall School of Law at the University of California at Berkeley, where she served as Associate Editor of the California Law Review, and a B.A. from Stanford University, where she graduated with distinction.

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Jonathan Varat

Jonathan Varat has taught Constitutional Law I & II, Federal Courts, and Separation of Powers at the UCLA School of Law. From 2016-19, the Chancellor recalled him to serve as Chief Liaison between UCLA and the Greater Los Angeles Veterans Administration. He was awarded the School of Law's Rutter Award for Excellence in Teaching in 1990. He served twice as Associate Dean of the law school and as its Dean from 1998 – 2003. Professor Varat is co-author of a major constitutional law casebook, Constitutional Law: Cases and Materials (with Amar, 2017), and is an expert on federal courts. His scholarship focuses particularly on constitutional federalism and freedom of speech. Professor Varat was schooled in Philadelphia and spent a two-year stint in the U.S. Army between his second and third years of law school in a variety of less-than-desirable locations. Thereafter, he clerked for Judge Walter Mansfield of the U.S. Court of Appeals for the Second Circuit and Justice Byron White of the U.S. Supreme Court. He then practiced as a litigator for two years with O'Melveny & Myers before joining the law faculty.

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Eugene Volokh

Eugene Volokh teaches First Amendment law and a First Amendment amicus brief clinic at UCLA School of Law, where he has also often taught copyright law, criminal law, tort law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (6th ed. 2016), and Academic Legal Writing (5th ed. 2013), as well as over 90 law review articles. He is a member of The American Law Institute, a member of the American Heritage Dictionary Usage Panel, and the founder and coauthor of The Volokh Conspiracy, a leading legal blog. His law review articles have been cited by opinions in eight Supreme Court cases and several hundred court opinions in total, as well as several thousand scholarly articles.

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Moderator
Erica Goldberg

Professor Erica Goldberg joined the University of Dayton School of Law faculty in August 2017. Prior to her appointment, she was an assistant professor at Ohio Northern University Law School. She also taught Legal Research and Writing as a Climenko Fellow and Lecturer on Law at Harvard Law School and Civil Procedure, Criminal Procedure, and Law and Religion as a Visiting Assistant Professor at Penn State Law School. After graduating from Stanford Law School, Professor Goldberg clerked for Judge Ronald L. Gilman on the United States Court of Appeals for the Sixth Circuit, practiced appellate litigation at Latham & Watkins LLP, and served as a legal fellow at the Foundation for Individual Rights in Education. Professor Goldberg has helped write briefs and petitions filed before several courts of appeals and the Supreme Court.

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Comments

Comment:

The panel sounds interesting and certainly timely!  However, I wanted to offer my concerns on the example chosen regarding “demonstrably false statements about public health such as “Masks don’t slow the spread of COVID.”  

Given the tragic politicization of “science” over the past 12 months, and the debate over the most appropriate public health measures to implement to respond to CV-19, I think it is particularly problematic to use a highly contested “health” protocol as if one particular scientific view is truth – and any opposing scientific/medical views are dangerous (and thus permissibly banned) fake news.  Specifically, although there is certainly a dominant view being put forth on community masking, there are quite a few opposing scientific/medical professional views on this, as well as numerous scientific studies showing that masks may make “little to no difference” to the spread of COVID. In fact, the WHO, in its most recent interim December 2020 Guidance, indicates that:  

Guidance on mask use in community settings  

Evidence on the protective effect of mask use in community settings  

At present there is only limited and inconsistent scientific evidence to support the effectiveness of masking of healthy people in the community to prevent infection with respiratory viruses, including SARS-CoV-2 (75). A large randomized community-based trial in which 4862 healthy participants were divided into a group wearing medical/surgical masks and a control group found no difference in infection with SARS-CoV-2 (76). A recent systematic review found nine trials (of which eight were cluster-randomized controlled trials in which clusters of people, versus individuals, were randomized) comparing medical/surgical masks versus no masks to prevent the spread of viral respiratory illness. Two trials were with healthcare workers and seven in the community. The review concluded that wearing a mask may make little or no difference to the prevention of influenza-like illness (ILI) (RR 0.99, 95%CI 0.82 to 1.18) or laboratory confirmed illness (LCI) (RR 0.91, 95%CI 0.66-1.26) (44); the certainty of the evidence was low for ILI, moderate for LCI.” (full guidance, see p. 8).

When the WHO itself is indicating that there is only “limited and inconsistent scientific evidence” to support the masking of healthy people, and there are numerous studies coming out to the contrary, it is hardly a “demonstrably false statement” to make a statement about masks like the one indicated in your announcement, let alone be considered reckless for asserting/disseminating it.   While there is of course scientific/medical opinions and studies to the contrary, and that position may even be the current dominant opinion in the scientific community, the point is that using this as an example of problematic “fake news” demonstrates the significant danger we are facing of labeling any opposing views as “fake news,” in order to eliminate all but the preferred dominant narrative.    

I realize that under the model statute you plan to discuss, and under existing law, there is a distinction between “provably false statements of fact” and “opinion,” and that statements that are “substantially true” are excepted.   However, my concern is that statutes like this could be used to intimidate, dissuade, or harass scientists/medical professionals/persons with knowledge and/or the “information sources” disseminating such opposing views from disseminating information that he/she believes to be true and beneficial to society.   This would of course have a chilling effect on free speech and the dissemination of potentially truthful and beneficial information, leaving us only with state-sanctioned dominant narratives that may or may not be truthful themselves.   

For anyone really paying attention, the last 12 months have revealed increasingly terrifying Ministry of Truth levels of censorship of any and all opposing scientific/medical views regarding all public health measures related to CV-19 – i.e., masks, society-wide lockdowns, and available/existing treatment protocols for CV-19 vs. mRNA gene therapies.  I have watched in horror, for example, as the scientists behind the Great Barrington Declaration -- Sunetra Gupta (Oxford), Jay Bhattacharya (Stanford) and Martin Kulldorff (Harvard) – or even Stanford’s Scott Atlas – have had their reputations tarnished, their motives questioned, and their opinions silenced, simply for expressing opinions critical of the dominant narrative regarding society-wide public health responses. In the U.S., of course, it has largely become politicized along party lines, which is a tragedy in my opinion, as we as a society only benefit from hearing all medical and scientific viewpoints when dealing with unprecedented/unchartered public health measures that have affected society so drastically and so devastatingly.    

As an attorney and professor focusing on First Amendment issues, I am sure you are well aware of the importance of allowing intelligent debate and opposing viewpoint discourse to take place on issues crucial to the public.  Labeling an opposing view “fake news” in order to ban it or intimidate/harass its disseminator because it legitimately questions a dominant narrative on “public health” or any other dominant narrative is a slippery slope towards despotism.  The model statute banning fake news that your panel will discuss/analyze is fraught with ethical and legal minefields that one may not see clearly enough when one is currently in agreement with the particular dominant narrative, but which can become an obvious tool for tyranny when one is not. 

In any event, I am reaching out with the hope that you will consider/discuss the problems with using this “public health/mask” example as an example of a “demonstrably false” statement, and that your panel will explore the very real ethical, legal, democratic, and societal dangers of labeling or trying to ban unpopular or anti-dominant narrative information as “dangerous fake news.”   

Rita Barnett-Rose

Comment:

I don't see it being an effective method, nor it bringing more trust or reliability to media outlets when they have consistently reported the same type of "fake news" saying it is a "first amendment right", yet injecting personal opinion, summation, and perspective while claiming these aspects as "facts" or "news", with most reporting being biased toward the entities of government wh ich has heavily vested amd invested interests in the media outlets to control content as well.

Harry Haggard

Comment:

The “material harm” requirement of the model statute greatly narrows its potential scope, which to my mind is probably a good thing. Assuming hypothetically that this statute had been universally in effect over the past year, what fake news harms might have been subject to prosecution under its terms?

James Stark

Comment:

"Free speech" that infringes on other people's rights or that may harm another person's civil rights, life, liberty, or their pursuit of happiness: IS NOT FREE SPEECH!

Leeron Morraes

Comment:

Hi! I love your Statute. I think sections 3(h)(i) and 3(h)(iii) could be easily circumvented. I have my own ideas for a statute to regulate fake news that uses Rule 10b-5 of the Securities Exchange Act of 1934 as a model, switching the words "in the sale of securities" with "in the dissemination of political ads." I also think Fox News, One America News, Brietbart News, and similar organizations use the word & quot;news" to represent themselves as what the constitution means by "press," when in actuality they are PR organizations that incidentally use "news" as a product. So they would qualify as BFNO's under your statute, but would be able to avoid its purpose. I think you could address the problem of misinformation by regulating the PR industry, which may seem tangential at first, but would actually address misinformation more directly.

Alex Berg

Comment: 

MUST BE LABELED FAKE BEFORE DURING AND AFTER THE BROADCAST TO INSURE IT IS NOT TRUE TO THE VIEWER!!!!

Lynn Rotzell

Comment: 

Remember that you yourself are the best secretary of your task, the most efficient propagandist of your ideals, the clearest demonstration of your principles, the highest standard of higher education that your spirit embraces and the living message of the high notions that you pass it on to others. Do not forget, also, that the greatest enemy of your noblest achievements, the complete or incomplete denial of the sublime id ealism that you proclaim, the discordant note of the symphony of good you intend to perform, the architect of your afflictions and the destroyer of your lifting opportunities - it's you.

Britney Horrzt

Comment: 

Trolling legitimate voices with intentional falsehoods, drowning out the truth with a sea of misinformation, attempting to mislead the public for financial gain, and intentionally trying to destroy political opponents with lies - none of these do anything to serve the interests and values underlying the First Amendment. The First Amendment protects our most sacred rights, but it has become a shield for the corrupt and insince re who use it to promote their intentional lies. Even though many recognize these threats to the First Amendment , few have offered solutions. Despite the many problems this model statute raises, it's a good first step in deciding what we can do to save the First Amendment by outlawing the aberrations some believe it protects.

Dan Taylor

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