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The Institute for the Study of the Judiciary, Politics, and the Media (IJPM) is a collaborative effort between Syracuse University's College of Law, Maxwell School of Citizenship and Public Affairs, and S.I. Newhouse School of Public Communications. IJPM is devoted to the interdisciplinary study of issues at the intersection of law, politics, and the media. The institute sponsors lectures, conferences, and symposia designed to foster discussion and debate between legal scholars, sitting judges, and working journalists. The institute provides research grants and seed money for scholars pursuing law-oriented projects that cut across traditional academic boundaries. The institute also oversees a cross-disciplinary graduate certificate program organized around a team-taught course offerings. To learn more about IJPM and its activities, please visit http://jpm.syr.edu/.



LAW, POLITICS & THE MEDIA eJOURNAL
Sponsored by Institute for the Study of the Judiciary,
Politics, and the Media (IJPM) at Syracuse University

"The Ecology of Transparency Reloaded" Free Download
In "Troubling Transparency: The Freedom of Information Act and Beyond" (David Pozen & Michael Schudson eds., Columbia University Press, Fall 2018, Forthcoming)
U of Penn Law School, Public Law Research Paper No. 17-40

SETH F. KREIMER, University of Pennsylvania Law School
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As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s "Dissent Channel," the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the Freedom of Information Act was unnecessary. FOIA has also suffered the converse criticism: that it is necessary but ineffective. A third constellation of critics discerns a mismatch between the legal regime of transparency and the goals of good governance. David Pozen has argued that the costs imposed are pathologically asymmetric. FOIA, he alleges, is "neoliberal" and "reactionary"; it "empowers opponents of regulation, distributes government goods in a regressive fashion, and contributes to a culture of contempt surrounding the domestic policy bureaucracy," while doing little to further scrutiny or control of corporate exploitation.

Drawing on case studies from the Bush-era "Global War on Terror" (or "Terrorism"), this chapter argues that critics miss important normative and practical issues. Critiques focused on denied requests and unsuccessfully litigated cases in isolation miss the ways in which information obtained though unlitigated or partially successful requests is facilitated by, and in turn has catalyzed other elements of a broader ecology of transparency. Analysts of FOIA should be alert to the elements of that ecology. Critics should acknowledge its virtues of resiliency and efficacy. Reformers should neither slight nor squander them.

"News Coverage of Donald Trump's First 100 Days" Free Download
HKS Working Paper No. RWP17-040

THOMAS E. PATTERSON, Harvard University - Harvard Kennedy School (HKS)
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“The press is your enemy,? said the president. “Enemies. Understand that? ... Because they’re trying to stick the knife right in our groin.? Donald Trump’s ongoing feud with the media is not the first time a president has felt wronged by the press. The opening words are those of Richard Nixon. Virtually every president since Nixon has obsessed over what they’ve seen as unfair treatment by the press. In the first two years of his presidency, Bill Clinton persuaded Congress to enact a tax increase on upper incomes, a family leave program, NAFTA, deficit reduction, the Brady bill, a youth training program, and other initiatives, yet was mired in a slew of headlines about Travelgate, Whitewater, and other alleged wrongdoings. In a Rolling Stone interview, Clinton exploded at his treatment by the press: “I’ve fought more damn battles here than any president in 20 years with the possible exception of Reagan’s first budget and not gotten one damn bit of credit from the knee-jerk liberal press. I am damn sick and tired of it.?

"Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation" Free Download
UC Davis Law Review, (2018 Forthcoming)
Yale Law School, Public Law Research Paper No. 615

JACK M. BALKIN, Yale University - Law School
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We have now moved from the early days of the Internet to the Algorithmic Society. The Algorithmic Society features the use of algorithms, artificial intelligence agents, and Big Data to govern populations. It also features digital infrastructure companies, large multi-national social media platforms, and search engines that sit between traditional nation states and ordinary individuals, and serve as special-purpose governors of speech.

The Algorithmic Society presents two central problems for freedom of expression. First, Big Data allows new forms of manipulation and control, which private companies will attempt to legitimate and insulate from regulation by invoking free speech principles. Here First Amendment arguments will likely be employed to forestall digital privacy guarantees and prevent consumer protection regulation. Second, privately owned digital infrastructure companies and online platforms govern speech much as nation states once did. Here the First Amendment, as normally construed, is simply inadequate to protect the practical ability to speak.

The first part of the essay describes how to regulate online businesses that employ Big Data and algorithmic decision making consistent with free speech principles. Some of these businesses are "information fiduciaries" toward their end-users; they must exercise duties of good faith and non-manipulation. Other businesses who are not information fiduciaries have a duty not to engage in "algorithmic nuisance": they may not externalize the costs of their analysis and use of Big Data onto innocent third parties.

The second part of the essay turns to the emerging pluralist model of online speech regulation. This pluralist model contrasts with the traditional dyadic model in which nation states regulated the speech of their citizens.

In the pluralist model, territorial governments continue to regulate speech directly. But they also attempt to coerce or co-opt owners of digital infrastructure to regulate the speech of others. This is "new school" speech regulation. Digital infrastructure owners, and especially social media companies, now act as private governors of speech communities, creating and enforcing various rules and norms of the communities they govern. Finally, end users, civil society organizations, hackers, and other private actors repeatedly put pressure on digital infrastructure companies to regulate speech in certain ways and not to regulate it in others. This triangular tug of war -- rather than the traditional dyadic model of states regulating the speech of private parties -- characterizes the practical ability to speak in the algorithmic society.

The essay uses the examples of the right to be forgotten and the problem of fake news to illustrate the emerging pluralist model -- and new school speech regulation -- in action.

As private governance becomes central to freedom of speech, both end-users and nation states put pressure on private governance. Nation states attempt to co-opt private companies into becoming bureaucracies for the enforcement of hate speech regulation and new doctrines like the right to be forgotten. Conversely, end users increasingly demand procedural guarantees, due process, transparency, and equal protection from private online companies.

The more that end-users view businesses as governors, or as special-purpose sovereigns, the more end-users will expect -- and demand -- that these companies should conform to the basic obligations of governors towards those they govern. These obligations include procedural fairness in handling complaints and applying sanctions, notice, transparency, reasoned explanations, consistency, and conformity to rule of law values -- the "law" in this case being the publicly stated norms and policies of the company. Digital infrastructure companies, in turn, will find that they must take on new social obligations to meet these growing threats and expectations from nation states and end-users alike.

"The Unintended Consequences of Prohibiting Advocacy of Hatred and Regulating Campaign-Finance: The Weakening Status of Freedom of Speech in Israel" Free Download

BARAK MEDINA, Hebrew University of Jerusalem - Faculty of Law
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A central dilemma in human rights law is how to reconcile the government’s duty to respect freedom with its obligation to protect individuals that might be harmed by the exercise of the same freedom. Intolerance toward disseminating certain illiberal positions might have social and political unintended adverse results. A central concern is that such a policy would create a “common culture? that fails to appreciate the critical importance of a vibrant public discourse. It might thus enable governments, in terms of popular legitimacy, to curtail speech beyond the limits of justifiable infringements.

Recent developments in Israel illustrate this concern. In recent years, anti-racism legislation was expanded by imposing sanctions on expressions deemed harmful to national sentiments and expressions that question the legitimacy of Israel’s Constitutional Identity as a Jewish state; and laws against supporting terrorism were followed by prohibitions on advocacy to boycott Israel.The Article offers several legal doctrines, which may obstruct the slippery-slope process of curtailing speech far and beyond the permissible domains. Implementing rules-based legal doctrines may contribute to the creation of a stronger public sentiment requiring the government to protect free speech, by explicitly restricting the scope of “harm-in-one-step? approach, and providing a clearer definition of the requirement of state neutrality in the context of regulating speech.

"The Future of the Anthropology of Law" Free Download
Ronald Niezen. 2017. The Future of the Anthropology of Law. PoLAR online

RONALD NIEZEN, McGill University
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What are the implications of the electronic architecture of the Internet and the communities it creates for activism, claims-making, and the opinion and persuasion behind the compliance of non-binding obligations? I am curious to know more about how this phenomenon of knowledge production and enclosure (which we saw amply in the recent U.S. election) plays out in claims-making, in recourse to judicial process, or challenges to its legitimacy. Does online activism reinforce the markers of identity that are at the foundations of collective legal claims? How are rights movements legitimated and strategically facilitated by the resources of new media? What are the ways that the “democratization? and refraction toward the self of the tools of propaganda are influencing justice claims? And, what are the consequences of the new ways of assessing and developing commitments to the “truth? in online legal activism? We are just at the beginning of being able to formulate answers to these questions.

"Our Imperiled Absolutist First Amendment" Free Download
University of Pennsylvania Journal of Constitutional Law, Vol. 20, Forthcoming

ZACHARY S. PRICE, University of California Hastings College of the Law
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For roughly half a century, First Amendment doctrine has provided Americans with unusually expansive protection for freedom of expression. In the wake of the divisive 2016 presidential election, this symposium essay offers some tentative reflections on whether and how the current judicial consensus supporting this doctrinal structure could unravel—and why it may be particularly important in our troubled current moment to prevent that from happening.

The essay pursues this inquiry, first, by highlighting the current understanding’s contingent historical emergence against the backdrop of the Civil Rights Movement. The essay then explores three salient recent developments that could place increasing pressure on the current consensus view: (1) the problem of “fake news,? meaning deliberate propagation of manifestly false news stories that shape public opinion; (2) the apparent disinhibition of bigoted and hateful expression; and (3) the ongoing risk of both foreign and domestic terrorism and political violence more generally. While speech-repressive solutions to these problems may well gain increasing popular appeal, weakening First Amendment protection in any of these areas could open the door to highly selective and discriminatory enforcement at different levels of government in our deeply divided polity. At the same time, because different sides of our divided polity hold sharply divergent perceptions of what speech is most dangerous, erosion along any of these axes could increase pressure for reciprocal changes along the others.

"Internet Intermediaries and Article 10 of the European Convention on Human Rights: The New Subjects of Media Freedom" 

ANDR?S KOLTAY, Peter Pazmany Catholic University, Hungarian Academy of Sciences
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How the principles of freedom of expression, developed over the centuries, can be preserved and passed on, and how the activities of these powerful intermediaries can be aligned with the legal doctrines of fundamental rights are massive issues for the legal regulation and thus for the practice of the ECtHR in the case law related to Article 10 of the Convention – and seem certain to remain so in the coming decades. Although the ECtHR has dealt with relatively few cases on the above subject matter to date, reviewing these will be illuminating, as they seem to outline (albeit inconsistently) a theoretical base that is adapting the traditional questions of freedom of expression to the new media landscape, and on which the ECtHR can rely when delivering judgments in future cases. As such, the ECtHR can in turn influence the regulation of the European public sphere as a whole through its decisions.

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About this eJournal

Sponsored by: Institute for the Study of the Judiciary, Politics, and the Media (IJPM) at Syracuse University.


Legal systems operate in a complex environment of principle, political pressure, and media coverage. The goal of the Law, Politics, and the Media subject eJournal is to distribute abstracts of working papers and articles that promote a more integrated understanding of law, courts, and their environment. To this end, the eJournal seeks scholarship that addresses any combination of legal, political, and media-related themes in the analysis of legal institutions, beliefs, and practices. The eJournal is open to work from the social sciences, the humanities, and the legal academy. Papers and articles that focus on the United States, as well as scholarship that is comparative or international in scope, are welcome.

Editor: Keith James Bybee, Syracuse University

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Law, Politics & the Media eJournal

LYLE DENNISTON
Reporter, SCOTUSblog

CHARLES G. GEYH
John F. Kimberling Professor of Law, Indiana University School of Law-Bloomington

TONY MAURO
Supreme Court Correspondent, Legal Times/Incisive Media

MICHAEL MCCANN
Gordon Hirabayashi Professor for Advancement of Citizenship; Director, Comparative Law and Society Studies (CLASS) Center, University of Washington - Department of Political Science

AUSTIN SARAT
William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College