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Discourse and Research from TechLaw

Free speech

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Focus Areas: Free speech

Legal theorists and lawmakers have always struggled to fully understand the purpose and bounds of the right to free speech, and the challenges have multiplied with today’s communications technology. Publication and distribution of speech is no longer expensive. The bottlenecks of the industrial era media (such as newspapers and broadcasters) must now compete with websites and social media platforms. Libel, privacy invasions, and wide-spread gossip are no longer problems exclusive the celebrity class as all private individuals have the potential to be the object of fascination, ridicule, and derision in the searchable public sphere. And in an information economy, economic regulations are more likely to be information regulations (and, thus, will have to tangle with First Amendment precedent.)

TechLaw faculty and fellows are leading sources of knowledge and policy recommendations in the frenetic free speech discourse. Jane Bambauer [hyperlink]  is a founding editor of the peer-reviewed Journal of Free Speech Law, and she, Derek Bambauer, and Andrew Keane Woods have published some of the most influential scholarship on free speech theory for new speech technologies. Their work includes:

Jane Bambauer & Derek Bambauer, Information Libertarianism, 105 California Law Review 335 (2017)

Andrew Keane Woods, Against Data Exceptionalism, 68 Stanford Law Review 729 (2016)

Jane Bambauer, Is Data Speech?, 66 Stanford Law Review 54 (2014)

Derek Bambauer, Orwell’s Armchair, 79 U. Chicago Law Review 863 (2012)

Derek Bambauer, Cyberseives, 59 Duke Law Journal 377 (2009)

Free Speech Work

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Prof. Jane Bambauer talked with SIIA about the problems with the American Innovation and Choice Online Act
Focus Areas: Free speech
Discourse Type: In the Media
Daphne Keller, When Platforms Do the State’s Bidding, Who Is Accountable? Not the Government, Says Israel’s Supreme Court, Lawfare (February 7, 2022) (citing Derek Bambauer’s work).
Focus Areas: Free speech
Discourse Type: In the Media
The Cyberlaw Podcast, Waging War in a Networked Age (February 28, 2022) (featuring Jane Bambauer as a panelist)
Discourse Type: In the Media
Cyberlaw Podcast, Episode 398: Scarlett Johannsson Finally Makes an Appearance on the Cyberlaw Podcast (March 14, 2022) (featuring Jane Bambauer as a panelist)
The Atlantic (April 25, 2020) In this provocative essay, Jack Goldsmith and Andrew Keane Woods argue that American tech firms’ mission to export First Amendment values to the rest of the world was a misguided failure.
Focus Areas: Free speech
Discourse Type: Policy Papers
This Lawfare essay proposes a new tort that would deter radicalization online by creating secondary liability for de facto leaders of online networks when a member commits an act of physical violence against a bystander.
Focus Areas: Free speech
Discourse Type: Scholarship
Forthcoming in the Indiana Law Journal In this essay, we explain the practical and doctrinal limits to analogizing social media content moderation practices to other contexts with more established First Amendment precedent. We identify the similarities between social media platforms and more traditional venues for speech (like mail, malls, and
Discourse Type: Scholarship
2021 University of Illinois Law Review Online 170 (Apr. 30, 2021) Technology policy issues were a dominant theme in the 2020 presidential election campaign. In his first hundred days, President Biden has taken a steady, incremental approach to the formation and rollout of his technology initiatives. Four trends have emerged.
Focus Areas: Free speech
Discourse Type: Scholarship
Forthcoming in the Hastings Law Journal Fake news presents a complex regulatory challenge in the increasingly democratized and intermediated on-line information ecosystem. Inaccurate information is readily created by actors with varying goals, rapidly distributed by platforms motivated more by financial incentives than by journalistic norms or the public interest, and
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Focus Areas: Free speech
This one-hour event brings together a panel of technology policy and antitrust litigation experts to discuss two bills that are intended to restrict anticompetitive conduct, but that may also open the door to claims that platforms can no longer restrict apps or publications that share disinformation and hate speech. The

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