Free Speech in the Fog of Scientific Uncertainty

Donald Trump’s assault on journalistic integrity and shared verifiable facts has ignited a reaction among public intellectuals to demand fealty to scientific truth. Unfortunately the reaction, like so many produced in the haste of political controversy, has oversimplified and overcorrected for the problem. One common assumption within the resistance is that existing systems for regulating scientific claims are self-evidently wise.

My new article, Snake Oil (forthcoming in the Washington Law Review), is therefore coming out at a rather inconvenient time. I loathe the Trump administration’s disregard and delegitimization of scientific institutions including expert federal agencies. Nevertheless, the methods that some expert agencies use to constrain the information flow to consumers are highly flawed. Where evidence is strong and abundant, fealty to an expert opinion by non-experts and lawmakers is sensible and efficient. But deference to an expert authority is not as wise where the science is weak and still-developing. Too often, scholars and policymakers justify broad government powers to regulate speech about weak and contested science by bootstrapping their arguments to examples where the scientific evidence is strong (like global warming), and where deference to experts is therefore highly sensible. But most of the hard choices that humans have to make, whether they are gravely important or relatively minor, are hard precisely because they concern factual questions with only a weak evidence base. Most decisions must be made where the science is still a fog.

Consider, for example, the Food & Drug Admistration’s and Federal Trade Commission’s regulatory powers over health claims. Both agencies have broad powers to censor advertising that is made without sufficient scientific support. And they use high standards (usually two clinical trials, though one court has suggested that one should be sufficient for foods), effectively silencing commercial speech where an evidence base is weak or still developing. Scholars largely support the existing rules requiring agency pre-clearance, and typically defend their constitutionality on the basis that unsubstantiated claims fall outside the coverage of protected commercial speech.

I disagree with the scholarly consensus. The strict standards applied to advertising are not consistent with free speech law, and they do a poor job fostering debate and science literacy. They often have the effect of screening out the best available evidence because it falls short of the agencies’ demanding requirements. At the same time, the standards tend to spur over-confidence in the claims that do meet the applicable standards, or that skate around the rules by making non-specific, comforting claims about health or wellness.

The greatest flaw in the FDA and FTC approach to advertising regulations is that the rules are designed to detect falsity rather than risk. Risk is, of course, related to the chance that a scientific claim turns out to be false, but falsity is not a good proxy on its own. The consequences from being influenced by a claim if it turns out to be false and the consequences of screening out a claim if it turns out to be true are often asymmetric.

The FDA’s restrictions on advertising for e-Cigarettes illustrate the problems with the current approach to commercial speech regulations. E-Cigarette manufacturers cannot make promotional claims that vaping is healthier than cigarettes even though the best available evidence suggests it is. Moreover, the risks from screening out this information if true are much greater than the risks from allowing the claims to be broadcast even if they turn out to be false since the worst case scenario for e-cigarettes is something comparable to the health effects of smoking. Yet the advertising ban has slowed the progress that had been made in persuading current smokers to switch to vaping. The concern that vaping will induce more teenagers to start smoking cigarettes also appears to be unfounded; states that allow the sale of e-cigarettes to minors actually have lower rates of teenage cigarette smoking than states that ban the sales, even with controls for preexisting propensity to smoke.)

A similar lesson can be learned from the FTC’s clumsy history with the egg industry, which I use as the key example in the introduction to Snake Oil. The FTC prohibited the egg industry from stating that there is no evidence that the consumption of eggs increases blood cholesterol or heart attack risks—a statement that was correct at the time and has stronger support today. Of course the egg industry’s ad campaign was completely self-serving, but the campaign would have served the public health as well since the fear of egg cholesterol drove consumers to eat even less healthy proteins like pork and red meat. There are other examples where FTC or FDA rules served public health interests, but these victories can be preserved by shaping a commercial speech rule around risk or harm rather than around “truth”.

To a large extent, this problem I am describing is imbedded in First Amendment doctrine. Central Hudson, the foundational commercial speech case, denied First Amendment protection to promotional speech that is false or misleading, so federal agencies and other law makers were encouraged to focus on the accuracy of advertising claims rather than the risks. But courts should begin the hard work now of readjusting free speech doctrine so that First Amendment protections are overcome only by concrete risks and harm rather than by inevitable doubts about the “truth” of a factual statement that is very difficult to test. The adjustment will put some constraints on agencies like the FDA and FTC (as well as courts interpreting state and federal false advertising law) to ensure that enforcement targets specific claims that are not only likely to be wrong, but to cause dangerous influences in consumer behavior.

By the way, this adjustment does not necessarily require the dismantling of current regulations. Many of the practices at the FDA and FTC could be justified using a risk-centered approach. For example, First Amendment law should allow the FDA to defend a position, based on historical evidence, that drugs with no history of human consumption are presumptively harmful or ineffective until proven otherwise. When it comes to already approved drugs, or to foods that have long been consumed by humans without acute negative effects, a categorical pre-clearance rule will be harder to defend on the basis of risk, but not impossible. Advertising rules that take both the weakness of an evidence base and the net effects of a false claim into account should be able to withstand First Amendment scrutiny. Free speech challenges can slowly steer false advertising law in this direction, and make commercial speech doctrine more compatible with the general trend in First Amendment law to permit regulation only when the government has credible evidence of concrete harm.

Commercial speech is not the only area of First Amendment jurisprudence that suffers from too much focus on truth and not enough on risk; when it comes to speech of public concern, First Amendment law has similar flaws but with the opposite valence. It overprotects statements that contradict accepted and well-supported scientific knowledge that are made in public debate, even if the speech is very likely to cause foreseeable reliance and harm. In my next post, I will discuss how a harm-based approach can give the government a freer hand to regulate public discourse in instances where junk science is likely to be false, influential, and harmful.

Product-Defining Speech

The state of Florida requires all milk sold in the state to contain Vitamin A. Thus, skim milk products, which have most of the naturally-occurring Vitamin A skimmed off with the cream, has to be fortified with added Vitamin A in order to meet Florida’s standards. This was a problem for the Ocheesee Creamery, which prided itself in creating dairy products without additives. The state provided a route for Ocheesee to sell its skim milk under its regulations for imitation milk, but Ocheesee would have been prohibited from labeling its skim milk “skim milk,” and would instead have had to use the term “imitation milk product.” Yum.

The creamery challenged the regulation under the First Amendment, and the 11th Circuit Court of Appeals sided with the creamery. The result of the case is not surprising given how absurd the facts are. Although the state has admirable reasons for wanting milk to be fortified with Vitamin A, it was torturing the English language by prohibiting sellers from using the words “skim milk” to describe what is, in fact, skim milk in its purest possible form. The facts would have been less absurd for the state if the popular understanding of the word “milk” was not the stuff produced by cows (and other mammals) but a product that always necessarily contains Vitamin A. This, though, does not fit common usage.

Even though I think the court got this case right, I also believe that what the state of Florida was doing in this case is not at all unusual. The holding in this case may have broader implications than the litigants or 11th Circuit panel realize. In a nutshell, what Florida wanted to do was force all milk producers to ensure that their products contain Vitamin A for public health reasons. Not every product has to have Vitamin A, of course, just milk. And how do we know what “milk” is? Rather than defining the nature of the substance, regulators can look to see how the sellers describe their own products. If they are selling something that they themselves refer to as “milk,” then it’s milk, and must comply with the Vitamin A rules.

This approach to product definition is very common. Regulators frequently define the scope of their product and service regulations based on the promotional speech of vendors. Let me give two examples to demonstrate that it is not unusual:

First, credit reports. The Fair Credit Reporting Act creates a set of rights and obligations for credit reporting agencies and the creditors or employers that access consumer reports. But what is a “consumer report?”

Here is the statutory definition:

15 U.S. Code § 1681a

(d)Consumer Report.—

(1)In general.—The term “consumer report” means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for—

(A) credit or insurance to be used primarily for personal, family, or household purposes;

(B) employment purposes; or

(C) [some other uses associated with credit, insurance, or business transactions]

And a consumer reporting agency, in a nutshell, is any entity that assembles information “for the purpose” of furnishing consumer reports to third parties. (15 USC §1681a (f).)

The problem, though, is that employers (and creditors, too) frequently use information outside standard credit reports to make decisions about lending and hiring. For example, employers sometimes google prospective employees or look at their public Facebook accounts before making interviewing or hiring decisions. Google has knowledge that its search services are used to make employment decisions and stands to benefit (at least marginally) from searches by employers. Does that mean Google is a credit reporting agency?

To avoid the dire consequences of applying the FCRA in a way that locks in a vast range of information service providers, the FTC and courts have limited the scope of “credit reporting agency” to instances where a purpose to create consumer reports is demonstrated through speech—that is, when a company has promoted the use of its information services for employment or credit decisions. This is why Spokeo was presumed to be subject to the FCRA in the recent Supreme Court case, Spokeo v. Robbins.

Spokeo opted into the regulatory strictures of the FCRA through commercial speech encouraging employers to use its profiles for employment decisions. Since Google hasn’t promoted its search services for use by employers (so far as I know), it has avoided the application of the FCRA.  Thus, the FCRA is a product-defining speech regulation.  There are two layers of speech here because the product itself is also speech– employability and credit-worthiness information. But the requirements of FCRA apply not based on how credit-worthiness information is used, but rather based on whether it is advertised for that use.

Another very important example comes from the Food, Drug, and Cosmetic Act. How do we know whether a chemical available on the open market is a “drug,” requiring significant testing and pre-approval by the FDA? The meaning of a “drug” (as well as a “food” or a “supplement”) is surprisingly obtuse. Just listen to this FDA official avoid defining “drug” in this Freakonomics podcast, and refer the show’s host to FDA attorneys.

Another very important example comes from the Food, Drug, and Cosmetic Act. How do we know whether a chemical available on the open market is a “drug,” requiring significant testing and pre-approval by the FDA? The meaning of a “drug” (as well as a “food” or a “supplement”) is surprisingly obtuse. Just listen to Margaret Hamburg, a former FDA Commissioner, avoid defining “food” and “drug” in this Freakonomics podcast, and then refer the show’s host to FDA attorneys (starting at minute 7:50.)

The boundaries of the term “drug” are made by product-defining speech. If a company says that its product can be used for a therapeutic purpose, then it is a drug and must be approved and labeled appropriately for that particular medical use.

I should make clear that this is not a universally accepted view. My colleague Chris Robertson argues that the FDCA is not a regulation of speech because speech is used only as evidence of the seller’s intent to introduce a drug into the marketplace. I disagree. As I explain in my new draft article, Snake Oil (forthcoming in the Washington Law Review), the FDA has carefully avoided using forms of evidence that would easily meet the standards for a knowledge or purpose mental state. For example, a drug manufacturer that knows that a drug is used frequently (even more often than not) for an off-label purpose and happily supplies it for those uses is not treated by the FDA as introducing a “mislabeled” drug. But if the company acknowledges through speech that the drug has been successfully used for an off-label treatment of some sort, then the manufacturer faces heavy fines and criminal liability. The sine qua non nature of speech to prove “intent” is evident not only from the history of FDA enforcement, but from the FDA’s own memo on the First Amendment’s application to public health law, which anticipates using commercial speech as evidence of intent and provides no examples of what other, non-speech conduct could be used to prove intent.

So, should free speech jurisprudence treat regulations of product-defining speech with the same skepticism and probing scrutiny that it applies to other regulations of speech? Or is product-defining speech a sensible way to limit the scope of product regulations without having to define the essential nature of things like “milk,” “credit reports,” and “drugs?” After all, regulations that hinge on commercial speech give sellers some flexibility. Sellers can avoid a set of regulations by avoiding certain forms of speech (like off-label promotion). There is also little room for doubt about when a regulation will apply, since manufacturers are necessarily on notice when they label or describe their products.

But these benefits (if they even are benefits) do not outweigh the free speech problems. First, when regulators avoid defining the scope of a product regulation using objective terms, it means that they are leaving significant loopholes for unregulated products. If there is a serious public health risk from all or a subset of off-label prescription drug use (or from milk or creditworthiness information, for that matter), current drug regulations leave the public exposed to much of that risk by allowing doctors to prescribe the drugs, and pharmacies and drug companies to supply them. Conversely, to the extent off-label drug use is appropriate and even good for patients, suppression of commercial speech comes with significant public health consequences, too, by removing a particularly powerful form of information-sharing.

Promotional speech, in other words, is often used as a rough proxy for a product’s risks when regulators could and should identify the scope of a product in objective terms and directly manage its risks. The best defense of these types of uses of speech regulations, which again comes from my colleague Chris Robertson, is that these regulations can act as a sort of brake on the market that incentivizes sellers to produce research and gather evidence to evaluate whether a drug is safe and effective. But FDA pre-screening is a costly and circuitous way to accomplish these goals, particularly for foods and drugs that have a history and known track record for human consumption.

Others have justified regulations of drug manufacturers’ speech on the basis that such promotion, without appropriate pre-vetting, are presumptively false or misleading. As my next post will explain, determining whether words are false or misleading is not nearly as simple as the free speech cases and scholarly literature suggests.

Blog Post Series: Products and the First Amendment

For the last two years, I have been researching and writing about information law in the service of product health and safety regulations. This includes advertising restrictions, mandated disclosure rules, and research regulations. I have not had the chance to pull my various projects together until now. Over the next five days, I will summarize my work and thoughts about the following:

Product-Defining Speech

Free Speech in the Fog of Scientific Uncertainty

Free Speech and Anti-Knowledge

Promoting Good Science Without Censorship

Assessing the Value of Mandated Informational Disclosures

The Unscientific First Amendment

(Links will become available as the posts are published.)

For those who want to skip straight to the law review articles (and God bless you if you actually exist), here are some links:

Snake Oil

A Bad Education

Are Privacy Policies Informational or Ideological?

The Empirical First Amendment

Modern Free Speech Is More Originalist Than You Think

This is a guest post by Tyler Broker, affiliate Privacy & Free Expression research fellow. Tyler’s new article, Free Speech Originalism, will be published in the Albany Law Review and is currently available in draft form on SSRN.

During my time in law school, the biggest disagreements I witnessed among my peers were over the basic premises of originalism. Whether the Constitution was meant to have a static meaning or whether historical inquiry provided the best methodology for understanding Constitutional provisions, were hotly contested and I often couldn’t help getting myself dragged into the debate. I remember thinking the reason the debate kept raging on was that each side could point out flaws that the other side could never sufficiently overcome.

Legal scholars and theorists have many good reasons to refrain from straying too far from originalism when interpreting the Constitution. But when it comes to free speech law, the conventional wisdom about original intent is an embarrassment.

When applying a strict originalist view towards the First Amendment’s free speech clause, the lack of a First Amendment strike down of the Sedition Acts and other categorical restrictions made during the pre-modern era appear as convincing evidence that the original intent for the Amendment accommodated expansive and heavy-handed government restraints on speech. Accordingly, many originalists view the modern-era of free speech jurisprudence, beginning with Justice Oliver Wendell Holmes’ dissent in Abrams, as a “decisive break” with original intent because of the era’s expansive view of protection. However, this view of a decisive break from history became more puzzling the more I examined Holmes’ position. Holmes’ dissent in Abrams did not reject history, in fact his position and his eventual Clear and Present Danger standard relied primarily on historical interpretation.

What, then, could explain why Holmes found such a different standard of protection than what had been the norm for over a century? The answer it turns out was modest and largely consistent with the Founders’ intent: Holmes had simply followed the evidence.

My Article draws on a common variable between the pre-modern and modern era periods of free speech jurisprudence: an evidence-based test of the effects of speech. The test since the founding requires the government to prove, using the best available evidence of the time, that the speech in question will cause genuine harm. If viewed through the lens of this test, first established by the Founders, the highly deferential jurisprudence of the eighteenth and nineteenth centuries and the more robust protections of the modern era become a progression compatible, and without significant deviation, from original constitutional intent. The difference is explained not by extraordinary shifts in the law, but in the greater access to reliable evidence about the true risks of speech and censorship. Moreover, this Article will demonstrate that if the evidence-based test was applied today in accordance with its original intent as a limiting principle on government authority, the protection of speech would not only be broader than it currently exists, but significantly deeper as well.

 

 

Identifying and Countering Fake News: New Study Published

Fake news has become a controversial topic, with media organizations, scholars, and even the President of the United States debating the issue. However, it’s not clear what counts as “fake news.” This makes it difficult to diagnose the social harms from fake news, or to create solutions to them. A new report, “Identifying and Countering Fake News,” brings much-needed rigor and clarity to the problem. It is authored by three media and Internet scholars at the University of Arizona: Mark Verstraete, Derek E. Bambauer, and Jane R. Bambauer. The report identifies several distinct types of fake news, including hoaxes, propaganda, trolling, and satire. The study also proposes a set of model solutions to reduce the production and dissemination of fake news.

In the public discourse, “fake news” is often used to refer to several different phenomena. The lack of clarity around what exactly fake news is makes understanding the social harms that it creates and crafting solutions to these harms difficult. This report adds clarity to these discussions by identifying several distinct types of fake news: hoax, propaganda, trolling, and satire. In classifying these different types of fake news, it identifies distinct features of each type of fake news that can be targeted by regulation to shift their production and dissemination.

This report introduces a visual matrix to organize different types of fake news and show the ways in which they are related and distinct. The two defining features of different types of fake news are 1) whether the author intends to deceive readers and 2) whether the motivation for creating fake news is financial. These distinctions are a useful first step towards crafting solutions that can target the pernicious forms of fake news (hoaxes and propaganda) without chilling the production of socially valuable satire.

The report emphasizes that rigid distinctions between types of fake news may be unworkable. Many authors produce fake news stories while holding different intentions and motivations simultaneously. This creates definitional grey areas. For instance, a fake news author can create a story as a response to both financial and political motives. Given this, an instance of fake news may exist somewhere between hoax and propaganda, embodying characteristics of both.

The report identifies several possible solutions based on changes to law, markets, code, and norms. Each has advantages and disadvantages. Legal solutions to fake news are likely to conflict with strong constitutional (First Amendment) and statutory (section 230 of the Communications Decency Act) protections for speech.  Market-based solutions are likely to only reach a subset of fake news. Code solutions may be limited by the difficult judgments required to distinguish satire from other types of fake news. Norms and other community solutions hold promise but are difficult to create through political will.

Some types of fake news are more responsive to regulation than others. Hoaxes are produced primarily in response to financial motivations, so solutions that remove (or decrease) the profit from fake news stories are likely to reduce the number of hoaxes created. By contrast, propaganda is produced primarily for non-financial motivations, so changes in its profitability are unlikely to significantly reduce its output.

The report introduces several solutions that can serve as starting points for discussion about the practical management of fake news, and networked public discourse more generally. These starting points include: expanding legal protections for Internet platforms to encourage them to pursue editorial functions; creating new platforms that do not rely on online advertising; encouraging existing platforms to experiment with technical solutions to identify and flag fake news; and encouraging platforms to use their own powerful voices to criticize inaccurate information.

For more information, contact lead author Mark Verstraete at markverstraete AT email.arizona.edu.

The Slants Visit Arizona Law

The Slants – the first and only Asian-American dance rock band in the world, and Supreme Court litigants in Lee v. Tam – are coming to Tucson! Founder and bassist Simon Tam will give a public talk at 12:00PM on Thursday, April 6, and the band will perform a concert at 7:30PM. Both events are at the University of Arizona James E. Rogers College of Law, 1201 E. Speedway, Tucson. Please come watch and listen!

The Slants at Arizona Law

The Arizona Board of Regents Get an F in FOIA Law

My home institution is undergoing a presidential search right now. Today, I heard a puzzling story during the local segment of my NPR station:

The 27-person presidential search committee has interviewed prospective candidates for president of the University of Arizona, and it has sent the Arizona Board of Regents a short list of names for consideration.

The names and number on the list are not being made public, said regent Bill Ridenour, who chairs the search committee.

“We certainly don’t want to put out the names because they are only prospects,” Ridenour said. “They may choose not to go in with the process.”

What’s puzzling about this is that Arizona Supreme Court precedent has defined what it means to be a confidential “prospect” for a university presidential search, and Bill Ridenour’s use of that term is clearly wrong. Here are the words of the 1991 Arizona Supreme Court decision in Board of Regents v. Phoenix Newspapers:

A prospect is a person in the initial large group that the Committee and HSI considers. A candidate is one who is seriously being considered, and is interviewed, for the position. The prospect may not know that he or she has been nominated, may not wish to be, and may find it embarrassing and harmful to his or her career. A candidate, on the other hand, may actively seek the office. Finalists are those persons actually submitted to the Board for selection.

The opinion goes on to reiterate that prospects who are interviewed for the job are candidates, and that the names of all candidates must be released to the public.

Candidates are prospects who are seriously considered, and who are interviewed for the job. As is the case in many hiring efforts, be it university president, football coach, or chief executive officer of a large business, those interested will already know who is being considered for the job. This, and the fact that the final candidates have an express desire for the job, should militate against maintaining confidentiality. Candidates who actively seek a job run the risk of their desire becoming public knowledge. Because they are candidates, they must expect that the public will, and should, know they are being considered. The public’s legitimate interest in knowing which candidates are being considered for the job therefore outweighs the ‘countervailing interests of confidentiality, privacy [and] the best interests of the state….’

The court went on to conclude that all 17 of the prospects who were interviewed for the position of ASU’s president were “candidates” whose name had to be made public.

I understand the drawbacks of making the names of candidates public, but at the same time, the public’s interest in knowing the pool of serious contenders is great. In addition to the general curiosity about whether the search committee is cultivating a strong pool and using the right factors for its decision-making, Arizona residents also have an interest in making sure that the search committee is complying with anti-discrimination restrictions. A glimpse at the candidate pool allows the public to assess whether the pool is being winnowed in a way consistent with state and federal law.

Bill Ridenour carefully describes the short list of candidates that was sent to the Board of Regents as “prospects.” I suspect he is relying on this language at the very end of the 1991 case about Board-adopted rules:

We note that it might be helpful to the court, the Board, and candidates, if the Board adopted rules of procedure for nominating university presidents. The adoption of rules could avoid a recurrence of future litigation. These rules could indicate when a prospect becomes a candidate and when confidentiality ends.

But I have serious doubts that this language at the end of the opinion was left as an invitation for the Board of Regents to re-define the meaning of a presidential search “candidate” in a way that contradicts the language and the reasoning of the case.

Reasonable minds may disagree about the wisdom of the Arizona public records laws, but I would hope we do not disagree about the importance of following established law, even when we disagree with it. Particularly on this day, when the U.S. president’s press corps has blocked the New York Times, CNN, and other major news groups from its press briefings, I am disappointed that my home institution is taking a cavalier attitude toward transparency obligations and choosing to err on the side of secrecy.

Artificial Intelligence, the Internet of Things, and Social Values

Please join the AALS Internet and Computer Law section for tomorrow’s session on “Artificial Intelligence, the Internet of Things, and Social Values” at the AALS annual meeting in San Francisco.

Date / Time: Thursday, 5 January 2017, 1:30 – 3:15PM

Location: Hilton San Francisco Union Square Hotel, San Francisco, CA

Summary: The Internet of Things will create a vast surge in the amount of data that we – and our devices – generate. To make sense of this trove of information will require the use of algorithms and artificial intelligence by researchers, firms, and government. Digital sifting creates both promise and peril, and is certain to clash with important social norms.

Paper / Project Titles

Josh Fairfield – Digital and Smart Property

Argyro Karanasiou (with Dimitris Pinotsis) – Intelligence and Will Embedded in Deep Learning Algorithms

Dave Levine – Confidentiality Creep, Opportunistic Privacy and Dual-Use Secrecy

Emily Schlesinger – Legal Challenges of Disruptive Technologies 

Biographies

Joshua Fairfield is an internationally recognized law and technology scholar, specializing in digital property, electronic contract, big data privacy, and virtual communities. He has written on the law and regulation of e-commerce and online contracts and on the application of standard economic models to virtual environments. Professor Fairfield’s current research focuses on big data privacy models and the next generation of legal applications for cryptocurrencies. His articles on protecting consumer interests in an age of mass-market consumer contracting regularly appear in top law and law-and-technology journals, and policy pieces on consumer protection and technology have appeared in the New York Times, Forbes, and the Financial Times, among other outlets. Before entering the law, Professor Fairfield was a technology entrepreneur, serving as the director of research and development for language-learning software company Rosetta Stone.

Dr. Argyro Karanasiou is an Assistant Professor (Senior Lecturer) specializing in IT and Media Law, affiliated with the Centre for Intellectual Property, Policy & Management (CIPPM) and with the Data Science Institute (DSI) at Bournemouth University (United Kingdom). Since August 2016, Argyro is a Visiting Research Fellow at the Internet Society Project (ISP) Center – Yale Law School. Her research discusses techno-legal conceptual frameworks towards a decentralized internet regulation with a particular focus on media ownership and user empowerment. Currently, Argyro is working on Deep Learning and its implications for the agent’s autonomy in automated systems. In the past, she has been involved in media related projects with the Council of Europe (Regional Expert on online media and reconciliation in South Eastern Europe) and with the OSCE Representative on Freedom of the Media. In 2013 (Indonesia) and 2015 (Brazil), Argyro was awarded an Internet Society IGF Ambassadorship and in 2014 she was named a PbD Ambassador by the Information and Privacy Commissioner in Ontario, Canada. In 2016, Argyro joined the EFF’s group of experts on Free Trade Agreements and Digital Services. Recently, Argyro was invited to submit evidence to the Royal Society on automated decision making and deep learning.  Her current projects span a wide range of topics from IoT/wearable tech to big data, bioinformatics and mesh networks. Argyro tweets @ArKaranasiou.

David S. Levine is an Associate Professor of Law at Elon University School of Law and an Affiliate Scholar at the Center for Internet and Society at Stanford Law School (CIS). He is a 2016-2017 Fellow at Princeton University’s Center for Information Technology Policy (CITP). He is also the founder and host of Hearsay Culture on KZSU-FM (Stanford University), an information policy, intellectual property law and technology talk show for which he has recorded over 250 interviews since May 2006. Hearsay Culture was named as a top five podcast in the ABA’s Blawg 100 of 2008 and can be found at http://hearsayculture.com. His scholarship, which has been published in several law reviews including Florida, North Carolina and Stanford Online, focuses on the operation of intellectual property law at the intersection of technology and public life, specifically information flows in the lawmaking and regulatory process and intellectual property law’s impact on public and private secrecy, transparency and accountability. He has spoken about his work in numerous venues, from the American Political Science Association annual meeting to the Information Society Project at Yale Law School, and internationally.

Dr. Dimitris Pinotsis is a Visiting Research Scientist at the Picower Institute for Learning and Memory and the Department of Brain and Cognitive Sciences at the Massachusetts Institute of Technology (MIT). He is also an Honorary Senior Research Associate at the Wellcome Trust Centre for Neuroimaging at University College London (UCL). Dimitris holds a PhD and an MSc in Mathematics from the Department of Applied Mathematics and Theoretical Physics (DAMTP) of the University of Cambridge, UK. His research has been funded by the US Air Force Office of Scientific Research, UK Research Councils (EPSRC) and the Wellcome Trust. It spans diverse areas including machine learning, the analysis of big data in   neuroimaging, theoretical neurobiology and nonlinear systems in mathematical physics. In recent work, Dimitris exploits deep neural networks and hierarchical Bayesian inference to answer questions in attention, memory and decision-making. Dimitris is an Expert Reviewer for US Air Force Office of Scientific Research, the Austrian Science Fund and the Italian Ministry of Health. He tweets at @dimitrispp and shares his work at researchgate.net.

Emily S. Schlesinger is a Senior Attorney in Microsoft’s Regulatory Affairs group where she advises lawyers in the Artificial Intelligence & Research engineering group on global privacy laws. Before joining Microsoft almost three years ago, she worked as a litigation associate at Wilson Sonsini Goodrich & Rosati’s Seattle office and DLA Piper’s Chicago office, and she served as a Deputy Solicitor in the Ohio Attorney General’s Office.  In addition, she clerked for Judge Guy Cole, Jr. of the U.S. Court of Appeals for the Sixth Circuit and Judge Algenon L. Marbley of the U.S. District Court for the Southern District of Ohio.

Hope to see you there!

Graduate Research Fellow in Privacy and Freedom of Speech – Apply!

The University of Arizona James E. Rogers College of Law welcomes applications for a graduate research fellowship beginning in October / November 2016 and ending in summer / fall 2017. The Fellow will work with Professors Derek Bambauer and Jane Bambauer on a series of projects related to privacy, transparency, and free speech, including a major research workshop for scholars in the field scheduled for spring 2017. The Fellow may have the opportunity to teach one or more classes at the law school to JD students or undergraduates. In collaboration with the University’s Center for Digital Society and Data Studies, School of Information, and School of Government and Public Policy, the Fellow will write scholarly research papers, produce opinion pieces for popular media outlets, communicate with stakeholders such as government officials and think tanks, and help the university develop its systems for data privacy and security. The goals of this project are to generate research findings that will inform policy, create new avenues for advocacy, and educate the public about privacy and free speech. The Fellow will also have the option of receiving affiliation as a Center for Democracy and Technology Research Fellow (https://cdt.org/about/fellows/). The position may involve occasional funded travel to the Center for Democracy and Technology in Washington DC.

About the Application Process

The University of Arizona is committed to meeting the needs of its multi-varied communities by recruiting diverse faculty, staff, and students. The University of Arizona is an EEO/AA-M/W/D/V Employer. As an equal opportunity and affirmative action employer, the University of Arizona recognizes the power of a diverse community and encourages applications from individuals with varied experiences, perspectives, and backgrounds. Applicants should have demonstrated interest and achievement in legal scholarship. A J.D. or equivalent degree from an ABA-accredited law school is required unless waived. The strongest applicants will have a mixture of legal practice experience, scholarly writing, and teaching experience. If you are interested in joining the College of Law’s community of teachers and scholars, please contact Professor Derek Bambauer with the following materials:

  • C.V.
  • Cover letter describing your research goals, scholarly interests, and relevant experience
  • Names and contact information of two references

Finalists for the Fellowship will be required to submit an application through the University of Arizona’s human resources Web site.

We anticipate interviewing candidates beginning in September, and offering the position to commence in October / November 2016. Both starting and ending dates are flexible depending upon the candidate’s needs.

The Fellowship pays a salary of $40,000 – 50,000 for its term and includes full benefits, including health care insurance. (And money goes a lot further in Tucson.)

If you have questions, please contact:

Derek Bambauer

Professor of Law

1201 E. Speedway

Tucson AZ 85718

derekbambauer@email.arizona.edu

Internet Troll’s “Political Shenanigans” Are Protected Speech–State v. Hirschman

(Cross-posted at the Technology & Marketing Law Blog.)

Aaron Hirschman, a self-proclaimed “Internet troll,” posted the following message on Craigslist:

Wanna make an easy $20 for voting? (Downtown Bend)

Are you interested in making a quick and easy $20? Meet us in the parking lot downtown near the drop off voting booth this weekend. All you need to do is bring your UNFILLED clean voting ballot and let us fill it out then you sign, and we hand it to the volunteer in the voting booth. Its that simple! Then you get $20. We’ll be there all weekend through tuesday.

Everybody, including state prosecutors, agreed that Hirschman had no intention of actually buying votes or carrying out this plan. His post was what the state called a “political shenanigan,” designed to provoke reactions by taking an absurd or offensive position.

troll

Unfortunately for Hirschman, his trolling was not obvious enough for the government’s liking. Even though nobody replied to Hirschman’s post, the Oregon Secretary of State’s office thought the post would be reasonably interpreted as a genuine proposal to create a contract. He was charged with and convicted of violating ORS 260.715(9), which states that “a person may not [] offer to purchase, for money or other valuable consideration, any official ballot [].”

On appeal, Hirschman made two key arguments: First, the trial court misinterpreted the meaning of the word “offer” in the statute by failing to incorporate an intent element that would require the state to prove he had a subjective intent to form a contract. Second, if the statute did apply to Hirschman’s post, then it violated his constitutional right to free expression under the Oregon Constitution (though the analysis would share many similarities to a First Amendment challenge under the U.S. Constitution.)

The Court of Appeals reversed Hirschman’s conviction. But the analytical path it took to reach its result is a bit surprising.

The court could have avoided a free speech analysis by interpreting the Oregon statute as the defendant suggested—requiring subjective intent by the offeror to actually enter into an illegal contract. This would have allowed the court to dispose the case on statutory rather than constitutional grounds. But the court declined. After consulting Webster’s dictionary and contract-based uses of the term “offer,” the court explained that the Oregon statute must sweep broader than the defendant suggests. The defendant’s version of the statute would be indistinguishable from an attempt to purchase a ballot (which could be charged under a different part of the criminal code).

This seems to me to be a needlessly rote approach to statutory interpretation. Defining the scope of criminal liability is a good time for courts to create legal terms of art that do not match in all respects the way the words are used elsewhere. Crime-facilitating speech is a well-known hazardous area for regulation since it lies at the boundary between protected speech and unprotected conduct. The best way to manage it is to ensure that criminal laws hew closely to transactions, using speech only as evidence of the transaction or preparatory steps. That way, if I make the joke “please, I’ll pay, just somebody please take out the Kardashian family,” the criminal consequences do not teeter on how well or poorly I communicate that I am not serious.

Assessing the defendant’s subjective intent can do some of the work (perhaps not all) to ensure that direct prohibitions of speech are actually targeting a realistic threat. This is why intent is a constitutional requirement in incitement prosecutions. See Dennis v. United States (“The structure and purpose of the statute demand the inclusion of intent as an element of the crime.”) It is worth noting, though, that the Supreme Court still has not clarified whether subjective intent is a constitutional requirement in other similar areas of criminal law like true threats (see Elonis).

But even apart from the wisdom of constitutional avoidance, there is another sensible reason to interpret an “offer” in this criminal context differently from in the contracts context: the goals of the two legal constructions are very different. In contract law, the state has an interest in enforcing accepted offers even if they are made without subjective intent to form a contract–so long as the statement of an offer was objectively believable–in order to encourage transactions. When the putative offeror’s and acceptor’s interests are at odds, the contract system is better off using the objective meaning of the language and context involved so that this and future acceptors are protected from fraud, and so that future offerors can make credible offers that are not discounted as cheap talk. The goal of contract law’s definition of an offer, then, is to enable transactions. When transactions are criminally prohibited, these goals are moot. The only reason to prohibit “offers” is to discourage the transaction from occurring at all, not to enhance their reliability.

Hirschman gave the court an opportunity to define “offer” in the context of a criminal statute as a species of attempt—as a solicitation with the purpose of entering into an agreement that would itself be illegal. But because the court rejected it and accepted the state’s version of the statute, the law wound up in the buzz saw of free speech scrutiny.

Given that the court gave the criminal statute the wide scope that it did, its free speech analysis is strong and, in my view, correct. The Oregon Constitution’s protection of free speech seems to be as protective as the U.S. Constitution when the government creates content-based prohibitions of speech, applying very strong scrutiny to all but the historically excepted categories of speech.  (In fact, the Oregon constitution may offer even stronger protections than the federal right to free speech since the court seems to limit the government to only the historically recognized exceptions).

First, the court found that the law targets expression rather than effects since a person violates the law only through communication, and since that communication can violate the law even if there are no bad effects.

Next, the court rejected the state’s claim that the anti-offer statute in this case was covered by the well-established historical exception for “solicitation or verbal assistance in crime” since solicitation crimes include the very element that the state insisted was not necessary for this particular law: the element of intent that the solicited crime be accomplished.

The court also saw right through the state’s argument that the statute was necessary to promote public trust in the state’s election system. Even if the effects are what the state fear they will be, the diminution of trust alone cannot justify the suppression of political speech. As the court put it, the state “selected a phenomenon and labeled it as a harm.” Derek Bambauer and I call these “tautological harms” in our forthcoming article Information Libertarianism. It’s nice to see a judicial opinion that so clearly identifies the problem; Courts are rarely this attuned to it.

The outcome of this case is doubtlessly correct. Hirschman’s odd mockery is surely part of our constitutional experiment in open political discourse. But given the path taken to reach the result, Oregon legislators may have to revisit and redraft laws criminalizing “offers” to engage in illegal activity lest prosecutors get trolled again.

Case citation: State v. Hirschman, 2016 WL 3675617 (Ore. Ct. App. July 7, 2016)