Says Pro-Choice Student Protesters Dont Have the Right to Protest

Richmond, VA Yesterday after 46 Virginia schools participated in a school walkout to protest the Supreme Courts pending decision to overturn Roe v. Wade, Attorney General Jason Miyaressaidthat these protests are incredibly disruptive and dont have the right to protest. This comes after Miyares on the campaign trailpraisedstudents for leading a walkout in Loudoun Schools this past fall. This begs the question, does Attorney General Miyares only believe in the first amendment when it fits his agenda?

When its aligned with his agenda:

When its against his agenda:

The ease at which Attorney General Miyares abandoned the first amendment is worrisome,said DPVA Spokesperson Gianni Snidle.The Attorney General is supposed to be Virginias chief law enforcement officer and took an oath to uphold the constitution. Yesterday he broke that oath. One thing is clear to Virginians Miyares is not fit to serve as the Attorney General of the Commonwealth of Virginia.

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AG Jason Miyares Only Believes in the First Amendment When It's Aligned with His Agenda - Blue Virginia

Last week, state Attorney General Ashley Moody called on U.S. Department of Homeland Security Secretary Alejandro Mayorkas to terminate the creation of a disinformation board that attacks Americans First Amendment rights. Along with 18 other attorneys general, Moody argued that the proposed Disinformation Governance Board will hurt the constitutional freedom to speak freely, debate and disagree with the governmentfreedoms that state attorneys general are responsible for defending.

President Biden is attempting to confuse and distort legitimate criticism and the perspective of American citizens. This authoritarian maneuver could be straight out of the novel 1984 and should frighten Americans of all political persuasions, Moody said.

The attorneys general argued that this government watchdog agency would abridge a citizens right to express their opinions and disagree with the government, furthering self-censorship rather than protecting freedom of speech. The boards creation is also an example of federal overreach. There is no statutory authority to support its inceptionparticularly as the publics elected representatives debate the issue of disinformation in Congress.

The letter states that the Disinformation Governance Board, by its very existence, and almost certainly by design, threatens to enforce silence when Americans wish to express views disfavored by the Administration. It is therefore already chilling free speech and impeding the political process ineveryState. This is unconstitutional, illegal and un-American. Unless you turn back now and disband this Orwellian Disinformation Governance Board immediately, the undersigned will have no choice but to consider judicial remedies to protect the rights of their citizens.

In addition to Moody, the attorneys general from the following states signed on to the letter: Alabama, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah and West Virginia.

More here:

Ashley Moody Tells DHS that the Disinformation Governance Board Undermines First Amendment - Florida Daily

Sarah, first off, thank you for the breakdown of the polls. David, I've seen post after post with women in burbs, like myself, over 50 yo, that feel VERY STRONGLY that this issue is one where we are white hot. Suburban women, are largely elite used to freedom and we are fiercely protective of our daughters. We may not like those potential decisions, but love and respect them for their decisions and how hard they have worked going to school, getting good grades and have real future potential. And this also means having children, but trust their decision is theirs to make. Many young women actually may choose to have their child and raise it. Actually my very liberal daughter included. Our young women are smart and brilliant! I love that...but when we shut the door on any decision and tell them the govt will tell them how to regulate their bodies, this is a total affront to us, the voting moms in the burbs with money and influence. We will see in the voting so what I say means absolutely nothing. But all I can say, is my story is being literally mirrored back to me from women over 50 with daughters. Love you both and keep fighting the good fights. We don't have to agree but nuance is EVERYTHING.

Link:

Dobbs Fallout with a First Amendment Twist - The Dispatch

Lawyers representing voters inArizona,GeorgiaandNorth Carolinahave filed lawsuits alleging that their elected congressional representatives are barred from running for future office based on a little-known provision of the14th Amendment.

Specifically,Section 3of the 14th Amendment reads:

No person shall be a Senator or Representative in Congress who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof.

Proponents ofbarring these representativesfrom running for reelection argue thattheir active supportfor those who stormed the U.S. Capitolon Jan. 6, 2021, qualifies as involvement in insurrection or rebellion against the U.S. government.

As a constitutional scholar, I believe that the lawyers seeking disqualification have a steep hill to climb in all of these cases especially when their arguments based on the 14th Amendment collide with the First Amendment and its protection of free speech.

That is not stopping those who want to hold accountable the elected officials who were involved in the storming of the Capitol on Jan. 6.

The challenges filed against GOP Reps.Marjorie Taylor Greeneof Georgia,Madison Cawthornof North Carolina andPaul Gosar and Andy Biggsof Arizona as well as Arizona Rep. Mark Finchem are part of a larger national campaign run by the nonprofit advocacy groupsFree Speech for PeopleandOur Revolution.

So far,judgeshave dismissed those argumentsin Arizonaand North Carolina. Both are on appeal.

The caseagainstRep. Greene of Georgia provides a useful lens through which to analyze this unique constitutional claim.

Thechallenge to her candidacycame to an end on May 5 when a Georgia state Judge Charles Beaudrot Jr. ruled thatGreene should remainon the ballot because lawyers challenging Greenes runfailed to provethat she engaged in insurrection on Jan. 6, 2021

The evidence in this matter is insufficient to establish that Rep. Greene engaged in insurrection or rebellion under the 14th Amendment to the Constitution, Judge Charles Beaudrot wrote in his ruling.

The lawsuit against Greene claimed, for example, that she frequently referred to the protest effort againstthe 2020 presidential electionas our 1776 moment.

This reference, lawyers argued, is a clear allusion to indeed, code for a violent overthrow of the existing government.

They claimed Greene had, at a minimum, given aid or comfort to enemies of the United States or, at most, engaged in insurrection by deploying such rhetoric.

And, after hermost recent court hearingson April 22, 2022, text messagessurfacedin which she asked about the possibility of President Donald Trumps declaringmartial law.

In the text, which was uncovered by theHouse select committeeinvestigating the events of Jan. 6,Greene toldthen-White House Chief of StaffMark Meadowsthat some members of Congress were saying in a private chat group that the only way to save our Republic is for Trump to call for Marshall (sic) law. I dont know on those things. I just wanted you to tell him.

Greene argued thather statementsand social media posts encouraged lawful protest by those who believe that the 2020 election was stolen.

TheFirst Amendment, she argued, allows for a broad range of free and unfettered speech, particularly political speech.

Greene alsotestified under oaththat she had no knowledge that any protester intended to disrupt the joint session of Congress that had convened to count the electoral votes.

In response to many of the questions posed to her, she claimed more than 50 times during her hearing thatshe didnt recall.

Greenefurther testifiedthat while she did encourage people to come to Washington, D.C., for a peaceful march, she did not assist any protester in navigating through the Capitol complex, as some have alleged.

Section 3 of the 14th Amendment was passed shortly after the Civil War in 1866 to bar Confederates from federal government positions. But that ban didnt last long.

Ablanket amnestyfor former Confederate soldiers was passed in 1872, making the vast majority of the rebels again eligible for office. In 1898, the prohibition was removed forthe last few hundredformer Southern congressmen and senators.

awthorns attorney, James Bopp Jr.,argued that the Amnesty Act of 1872nullified Section 3 of the 14th Amendment and allows Cawthorn to seek election in the upcoming May 17, 2022, GOP primary.

U.S. District Judge Richard Myersagreed and dismissedthe case against Cawthorn. The district judge ruled that the Amnesty Act of 1872, which exempted Confederates from proscriptions of Section 3, is still in force and shields Cawthorn from being prevented to run for office.

Unlike the case in North Carolina, the case against Greene in Georgia was allowed to proceed by a federal judge there. On April 18, 2022, U.S. District Judge Amy Totenbergdenied Greenes motionto block the case against her and best summed up the constitutional morass the cases have raised.

This case, Totenbergwrote in her 73-page ruling, involves a whirlpool of colliding constitutional interests of public import. Greenehas appealedthat decision.

Political speech has and deserves special protection. To protest the government, even using strong, unpleasant or unpopular language, is central to the protections afforded by the First Amendment.

As such, courts tend to cast a wide net when defining speech covered by the First Amendment.

In addition to the First Amendment limitations, I think there is something anti-democratic about prohibiting a candidate from even running for office.

The notion that voters get to choose their elected representatives through free and fair elections represents a principle at the core of American democratic traditions.

To remove the voters ability to choose those whom they wish to elect to public office requires a weighty justification, and courts have long ruled this way. While aiding and abetting an insurrection is such a justification, it is an open question whether Greenes conduct fits within the definition of Section 3 of the 14th Amendment.

Clearly, had Greene charged the Capitol with a weapon demanding that Congress seat President Trump, her actions would be clear and her disqualification warranted. But instead of weapons and storming, Greene deployed words and electronic posts.

The distinction makes a difference.

In my view, given the First Amendments robust protection of speech, to bar a candidate from running for office requires evidence of intent toengage in insurrectionin far greater proportion than what has thus far been presented in the case against Greene.

Even Greenes call for martial law likely is not enough. Bizarre and wrongheaded statements are protected by the First Amendment just as cogent and thoughtful ones are.

Ronald Sullivan is a professor of law at Harvard University.

May 9 |Emily Finchum-Mason, The Conversation

May 6 |William A. Gralnick

May 4 |Paul B. Stephen, The Conversation

May 4 |Alex Domash and Lawrence H. Summers, The Conversation

Go here to see the original:

Forgotten insurrection clause of 14th Amendment used to force members of Congress to defend their actions on Jan. 6 - Brooklyn Daily Eagle

from the protect-speech-too dept

Last week the recently formed California Privacy Protection Agency held pre-rulemaking stakeholder sessions to solicit input on the regulations it intends to promulgate. I provided the following testimony on behalf of the Copia Institute.

Thank you for the opportunity to speak at these hearings. My name is Cathy Gellis, and Im here representing myself and the Copia Institute, a think tank that regularly researches and comments on matters of tech policy, including as they relate to privacy and free speech.

Im here today to talk about how privacy regulation and free speech converge in order to urge this board to carefully address the collision of any proposed regulation and the First Amendment, particularly with respect to the protection of speech and innovation. To do so I want to make three interrelated points.

First, as a general matter, it is important that any proposed regulation be carefully analyzed from a First Amendment perspective to make sure it comports with both its letter and spirit. When the First Amendment says make no law that abridges freedom of speech, that admonition applies to California privacy regulation. The enabling California legislation involved here itself acknowledges that it is only intended to supplement federal and state law, where permissible, but shall not apply where such application is preempted by, or in conflict with, federal law, or the California Constitution, and violating the First Amendment would run afoul of this clause.

Its also important that any such regulation comport with the spirit of the First Amendment as well. The First Amendment exists to make sure we can communicate with each other, which is a necessary requirement of a healthy democracy and society. It would be an intolerable situation if these regulations were to chill our exchange of information and expression, or to unduly chill innovation. While wanting online services to be careful with how they handle the digital footprints the public leaves behind is admirable, the public would not be well served if new and better technologies couldnt be invented, or new businesses or competitors couldnt be established, because California privacy regulation was unduly burdensome or simply an obstacle to new and better ideas.

Along these lines a second point to make is that California is not Europe. Free speech concerns do not get balanced here and cannot be balanced without violating the First Amendment. The experience of the GDPR in Europe is instructive in warning what happens when regulators try to make such a balance, because inevitably free expression suffers.

For instance, privacy regulation in Europe has been used as a basis for powerful people to go after journalists and sue their critics, which makes criticizing them, even where necessary, and even where under the First Amendment perfectly legal, difficult if not impossible, and thus chills such important discourse.

The GDPR has also been used to force journalists to divulge their sources, which is also anathema to the First Amendment and California law, along with itself violating of the privacy values wrapped up in journalist source protection. It also chills the necessary journalism a democratic society depends on. (As an aside, the journalistic arm of the Copia Institute has had its own reporting suppressed via GDPR pressure on search engines, so this is hardly a hypothetical concern.)

And it was the GDPR that opened the door to the entire notion of right to be forgotten, which, despite platitudes to the contrary, has had a corrosive effect on discourse and the publics First Amendment-recognized right to learn about the world around them, while also giving bad actors the ability to whitewash history so they can have cover for more bad acts.

Meanwhile we have seen, in Europe and even the U.S., how regulatory demands that have the effect of causing services to take down content invariably lead to too much content being taken down. Because these regulatory schemes create too great a danger for a service if they do not do enough to avoid sanction, they rationally chose to do too much in order to be safe than sorry. But when content has been taken down, its the world who needs it whos sorry now.

As well as the person who created the content, whose own expression has now been effectively harmed by an extrajudicial sanction. The First Amendment forbids prior restraint, which means that its impermissible for speech to be punished before having been adjudicated to be wrongful. But we see time and time again such prior restraint happen thanks to regulatory pressure on the intermediary services online speakers need to use to speak, which force them to do the governments censorial dirty work for it by causing expressive content to be deleted, and without the necessary due process for the speaker.

Then there is this next example, which brings up my third point. Privacy regulation does not stay well-cabined so that it only affects large, commercial entities. It inevitably affects smaller ones, directly or indirectly. In the case of the GDPR, it affected the people who used Facebook to run fan pages, imposing upon these individuals, who simply wanted to have a place where they could talk with others about their favorite subject, cripplingly burdensome regulatory liability. But who will want to run these pages and foster such discourse when the cost can be so high? Care needs to be taken so that regulatory pressure does not lead to the loss of speech or community, as the GDPR has done.

And that means recognizing that there are a lot of online services and platforms that are not large companies. Which is good; we want there to be a lot of online services and platforms so that we have places for communities to form and converse with each other. But if people are deterred from setting up, say, their own fan sites, independent of Facebook even, then thats a huge problem. Because we wont get those communities, or that conversation.

Society wants that discourse. It needs that discourse. And if California privacy regulation does anything to smother it with its regulatory criteria, then it will have caused damage, which this agency, and the public that empowered it, should not suborn.

Thank you again for this opportunity to address you. A version of this testimony with hyperlinks to the aforementioned examples will be published on techdirt.com shortly.

Filed Under: california, cppa, free speech, privacy

See the original post:

Wherein The Copia Institute Reminds California's New Privacy Agency That Its Regulations Need To Comport With The First Amendment - Techdirt

Wednesday, May 4, marked the final Student Association (SA) senate meeting of the semester. The meeting began with a historical Memorandum of Understanding (MOU) signing, by Chancellor Joe Gow, showing support of the Green Fund Grant to approve a new sustainability program manager. The signed document detailed the universitys commitment to funding this position partially for three years, along with the SAs commitment to also fund them for three years.

It is a wonderful collaboration that we are doing, and a model, I think, for some future things that we can do, said Gow, I know that many students have wanted this position for a long time.

The room was also packed with those waiting to hear from Gow about the chalk-writing statements done by the Hoeschler Tower last week regarding the School of Education (SOE) issues.

I am a very staunch advocate of the First Amendment and would hate to be perceived as an opponent against free speech, said Gow, but I have never really thought about chalking before because we dont really have a policy on it. I am hoping to form one here tonight with the Senate.

The Chancellor said he is mainly concerned with certain lines containing the f-bomb and other profanity but wanted to make clear that, the university has no interest in punishing anyone.

After Gow left for a prior engagement, outgoing senate Vice President, Jared Zwettler gave his opinion on the matter:

I worked with a number of people on this issue, and I dont think its right that the university is censoring profanity. There is case law that does support use of profanity and that it cannot be regulated in many situationsI think that Chancellor Gows arguments do not hold a lot of weight and I strongly disagree with his position and his stance, and I want to make that known here today.

The SA further discussed this issue by way of SA2122-054: Resolution in Support of Student Free Speech Rights, written up by Senator Carter Drost.

James Szymalak, Assistant Professor of Political Science & Public Administration, was called on multiple times during Wednesdays meeting. He teaches many courses of this nature, including legal studies and ethics in government. Before coming to UWL, Szymalak served as a senior Pentagon personnel policy legal advisor within the Department of the Army. The SA called on him to give legal advice about the free speech resolution, and asked for his opinion regarding the chalking:

I am an actual attorney and a First Amendment scholar, and the law is really clear that profanity is not obscenity. The decision to chalk out f-bombs is a policy decision; I am here to talk about legal decisions, and the legal decision is clear. It doesnt matter that it is chalk or a ballpoint pen, the First Amendment is the First Amendment. Using dirty language is not unsettled and its not a recent development. Just because eighth-graders are around it does not change the law.

Szymalak said the universitys decision to strike out offensive wording is a clear violation of the Constitution. He also said the SOE chalking is not vandalism because the campus created it as a designated public forum, on this and many other campus-related events, issues, etc. which overrides the vandalism rule.

Earlier, Chancellor Gow spoke about various faculty members issues with their names being a part of the chalking. Szymalak cleared this up saying, This is also not defamation; the individuals that were named, as far as I know, are public figures. Public employees are public figures, and this idea that they are delicate geniuses that cant be talked about is crazy.

Addressing the senate, he also stated to his fellow faculty, I am disappointed in the university, but I am even more disappointed in my colleagues. How many of your professors have talked about this with you in class? To which no one raised their hand.

He said that he is here to support the students of the SOE. To the university, when are you going to draw the line and say no? No one has stood up and done a thing. Why isnt anyone else standing up for this? Its school event stuff now, but whats next?

Read the original here:

Student Association meets to discuss First Amendment rights and chalking around Hoeschler Tower - The Racquet

A review of Richard L. Hasen, Cheap Speech: How Disinformation Poisons Our Politicsand How to Cure It (Yale University Press, 2022).

***

In 1995, Eugene Volokh published a law review article in which he predicted that the rapidly growing internet would dramatically reduce the costs of distributing speech and that the new media order that these technologies will bring will be much more democratic and diverse than the environment we see now. The concept, which Volokh dubbed cheap speech, would mean that far more speakersrich and poor, popular and not, banal and avant gardewill be able to make their work available to all.

To say that Volokhs article was prophetic would be an understatement. More than a quarter-century later, the cheap speech that Volokh predicted has upended commerce, art, politics, news and community. Many volumes can and should be written about the effects of the rapid evolution of cheap speech on discrete areas of American life.

Fortunately, Rick Hasen has done just that. In Cheap Speech: How Disinformation Poisons Our Politicsand How to Cure It, Hasen takes on the lofty task of examining the impact of cheap speech on American elections, politics and democracy. Hasen has written an extraordinary, thorough and fair examination of the impact of misinformation on democracy. He examines the costs and benefits of cheap speech and presents carefully crafted proposals that attempt to address the harms without straying from core First Amendment values or from falling into a moral panic about misinformation.

Hasen expands on Volokhs concept of cheap speech, defining it as speech that is both inexpensive to produce and often of markedly low social value. Hasen devotes the first part of the book to an even-handed evaluation of the impact of cheap speech on American democracy. Hasen does not villainize the internet as the source of all that is evil about modern politics. There is no doubt that the rise of the Internet has had many free speech benefits, Hasen writes. We worry much less about media consolidation and scarcity of information than we did when there were just three main broadcast television networks and a handful of local newspapers in each area.

Of course, the discussion of the internets benefits to democracy is followed by a very long but. Hasen documents many information harms that have accompanied the digital revolution: contraction of local journalism, political operations disguised as news sources, reduction in public trust in institutional media and elections, deep fakes, Russian disinformation during the 2016 presidential campaign, and of course the lies that led to the storming of the Capitol on Jan. 6, 2021.

Hasen explores how the dissemination of cheap speech has shaped modern politics by weakening political parties, accelerating demagoguery of candidates and opening the door to more public corruption. The unique challenges posed by online platforms and the algorithms they use to amplify and target extremist content can further contribute to the spread of conspiracy theories and other misinformation. Hasen writes of the increased power that platforms wield in their decisions to take down or leave up political content.

Although he comprehensively outlines the potential harms of cheap speech on elections and democracy, Hasen readily admits that the magnitude of some of these harms is unclear, in part because of the opacity of the operations of many platforms and the lack of researcher access to their data. (Indeed, the extent of the harms of misinformation is the subject of much-needed and spirited debate.) Hasens candor about the unknown makes readers more likely to consider his ultimate assessmentthat from a voters perspective, the costs of cheap speech likely have outweighed the benefits.

More important than Hasens evaluation of the problem is the second half of the book, in which Hasen considers potential solutions to mitigate some harms of cheap speech. Too often, discussions about misinformation end in solutions that casually dismiss First Amendment principles. Other times, they simply conclude with despair and do not even try to address the problems. Hasenone of the nations most knowledgeable and respected election law scholarscould have gotten away with half-baked proposals to lop off large chunks of the First Amendment for the sake of saving democracy from cheap speech.

Nor would Hasen have been alone had he proposed sweeping limits to free speech. The First Amendment allows the government to limit some false speech, such as perjury, fraud, and defamation, but the Supreme Court has held that false speech is not categoricallyor even generallyexempt from constitutional protection. Nor can the courts easily carve out new exceptions just because they believe that the harms of certain speech outweigh the benefits. The First Amendments guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits, Chief Justice John Roberts wrote in 2010.

That hasnt prevented well-intentioned but impractical proposals to censor in the name of misinformation prevention. For instance, earlier this year, Washington Governor Jay Inslee supported a bill that would make it a jailable offense for politicians to tell certain lies about election administration. While such proposals are borne of legitimate concerns about misinformation, too often they do not fully account for fundamental First Amendment values that constrain the governments ability to regulate speech. After state lawmakers consulted legal scholars, they redrafted the bill to limit it to cases that meet the Supreme Courts standard for imminent incitement, a high bar that, if applied faithfully, would make it incredibly difficult for prosecutors to bring charges arising from many politicians election lies. Yet it still likely would have a chilling effect on many politicians who have well-founded concerns about election administration. Even if they likely would not be convicted under the law, why risk the prospect of prosecution and legal fees? (The bill died without receiving a vote in the state legislature.)

Of course, nine people have the power to redefine First Amendment protections for false speech. And two of those nineJustices Clarence Thomas and Neil Gorsuchhave argued that the Supreme Court should reconsider New York Times v. Sullivan, the vital 1964 ruling that requires public officials who are plaintiffs in defamation lawsuits to meet the high bar of actual malice. Among the cases that Thomas cited in support of the need to reconsider Sullivan was Pizzagate, the online conspiracy alleging that prominent Democrats ran a sex trafficking ring in a D.C. pizza shop, causing an armed man to enter the restaurant in December 2016 and fire three shots. Our reconsideration is all the more needed because of the doctrines real-world effects, Thomas wrote. Public figure or private, lies impose real harm.

But Hasen has not joined the calls for substantial abrogations to free speech. As Hasen recognizes, solving the problems created by cheap speech with sweeping new laws that limit speech would undermine some fundamental American values and a key part of our democracy: the benefits of robust and uninhibited political debate. Hasen also properly questions who, in a society animated by distrust, would do the regulating and how they would do it.

Rather than traveling down the censorial road that many others have traveled, Hasen relies on his deep knowledge of election and campaign finance law to suggest ways to mitigate some of the worst political misinformation harms.

Some of Hasens suggestionssuch as ensuring that state and local governments competently administer electionsdo not raise First Amendment problems. The proposals that do implicate potential free speech concerns valiantly attempt to stay within the strictures of the First Amendment. For instance, when Hasen suggests that Congress amend campaign finance disclosure laws to address online advertisements, he attempts to adhere to the Supreme Court precedent that has approved of some campaign finance disclosure requirements. Yet Hasen also recognizes that some justices who supported campaign finance disclosure laws no longer sit on the court, so how the current court would react to new requirements is uncertain.

Hasen also recognizes that it is hard to predict whether the Supreme Court would approve his proposal to require large online platforms to place labels on synthetically altered videos and images of politicians, addressing the concerns about deep fakes. Yet he presents a reasonable argument for such a proposal to survive even the most rigorous constitutional scrutiny and contrasts it with more constitutionally problematic bans on deep fakes.

Hasen argues that the government should have the power to ban false speech about the mechanics of voting, such as lying about when an election will occur or how people can vote. The Supreme Court has suggested that a states ban on speech that is intended to mislead voters about voting requirements and procedures would survive a First Amendment challenge. Hasen is appropriately careful to exclude from his proposed ban generalized claims that an election will be rigged or stolen, as well as postelection claims about stolen or rigged elections. The narrowness of this proposal means that it would not address much of the big lie that fueled the Jan. 6 storming of the Capitol, but it is far more likely to survive a First Amendment challenge than a more sweeping election misinformation proposal.

Hasen rightly resists the temptation to attempt to address misinformation through amendments to Section 230, the 1996 law that shields online platforms from many claims arising from third-party content. A wide swath of misinformation is constitutionally protected, and amending Section 230 could not eliminate that protection. He also correctly recognizes that repealing Section 230 would not address the claims that platforms are biased against conservatives, as the increased legal risk likely would cause platforms to take down more content. That is not to say that Hasen dismisses concerns about platform power; rather, he suggests addressing them via required disclosures about algorithmic tweaking of content, antitrust law and privacy laws.

Even if Congress were to adopt all of Hasens proposals and the courts did not strike them down, he recognizes that law is not a panacea. Law alone is not going to stop millions of people from believing the election was stolen when a president popular within his party repeatedly uses social media to advance the false claim that it was, Hasen acknowledges. He appropriately devotes the final chapter to extralegal solutions to problems caused by misinformation. Hasen recognizes the ability of social media platforms to more effectively address misinformation (as online platforms are not state actors that are bound by the First Amendment). To be sure, content moderation at scale is difficult, and many of the toughest decisions will inevitably attract some criticism. And while public pressure on platforms to moderate can be effective, pressure coming from the government could raise First Amendment concerns about jawboning. Hasen also correctly focuses on the need to invest more heavily in local journalism and improve digital literacy.

The book would benefit from a meaningful analysis of how other countries have confronted misinformation in recent years. Authoritarian governments oppressive use of fake news regulations would further bolster Hasens caution against broader restrictions on false speech. U.S. protections for false speech are not an accident. The First Amendment does apply to a wide range of false speech, but the experiences of these other countries illustrate why it should apply to this speech.

In the books conclusion, Hasen argues that the Supreme Court should recognize that First Amendment balancing must be recalibrated, though he recognizes that the risk of censorship and of stifling robust debate still must figure heavily in constitutional analysis. Recalibration of core First Amendment protections could lead to dangerous consequences. But such recalibration likely is unnecessary for many of the narrow and reasonable proposals that Hasen presents.

Misinformation has the potential to upend individuals, institutions and democracy. It is tempting to seek to address these harms via a radical rethinking of free speech protections. But balanced and narrowly tailored solutions, such as those that Hasen has proposed, are more valuable to this vital discussion.

The views expressed in this review are those of the author and do not represent the Naval Academy, Department of the Navy, or Department of Defense.

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Confronting Misinformation in the Age of Cheap Speech - Lawfare