Fake News and the First Amendment

Mark Verstraete and I are at a great symposium on Fake News and the First Amendment, run by UNC-Chapel Hill’s First Amendment Law Review. We will have a draft of our article available soon – for now, here’s a link to our white paper on fake news. Many thanks to Mary-Rose Papandrea, David Ardia, and […]

Come See The Slants at Arizona Law!

The Slants – fresh off their win at the Supreme Court in Matal v. Tam – are coming to Arizona Law! You’re invited both to Simon Tam’s talk about his experience litigating over whether the band’s name could be registered as a mark, and also to their concert. Details below. When: Tuesday, 12 September 2017 […]

The Untestable Marketplace of Ideas

This post will summarize my essay, The Empirical First Amendment (forthcoming in the Ohio State Law Journal, as part of a symposium on “the Expanding First Amendment”). The essay argues that the First Amendment’s protections are surprisingly shallow when it comes to scientific discovery. I say “surprisingly” because free speech law aspires to be scientific. The […]

Assessing the Value of Mandated Informational Disclosures

My last post listed mandated informational disclosures as a means to promote consumer education without using censorship rules. Mandated disclosures are an appealing option to help consumers make better-educated decisions. In theory, compelled informational disclosures can help reduce some of the foreseeable failures in the marketplace of ideas by adding good information rather than subtracting […]

Promoting Good Science Without Censorship

My last two posts summarized the extent to which the First Amendment should constrain the government when it seeks to censor weak scientific claims. To the extent that the government uses advertising restrictions in order to promote good science, free speech doctrine has already begun to get in the way. This could nudge federal agencies […]

Free Speech and Anti-Knowledge

My last post described a risk-based approach to First Amendment protection of scientific claims, and showed why this shift would constrain some of the legal rules that currently apply to commercial speech. Although a risk-based approach would give the government less latitude to regulate scientific claims made by commercial speakers, it should give the government […]

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 […]

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 […]

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 […]

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 […]