Top Papers in the Freedom of Expression Division

Sponsor: Freedom of Expression Division
Sat, 11/10: 11:00 AM  - 12:15 PM 
Salt Palace Convention Center 
Room: 259 (Level 2) 
This panel explores a wide range of important issues in Freedom of Expression, and the papers represent the top papers for our division. The Robert M. O'Neill Top Paper Award and the Top Student Paper Award will be presented at this session.

Chair

Billie Murray, Villanova University  - Contact Me

Respondent

Dale A. Herbeck, Northeastern University  - Contact Me

Sponsor/Co-Sponsors

Freedom of Expression Division

Presentations

The First Amendment and Fear in American Schools: A History and Analysis of Morse v. Frederick

Schools are a haven of fear. Many students fear that they will not be socially included, or that they will fail to achieve academic success, or that they will be physically assaulted, or shot. Many teachers fear that they will not be able to give enough attention to their students as they see class sizes rise, or that they will work for administrators who put other interests ahead of the needs of students, or that they will lose control of the classroom. Many administrators fear disorder in the schools, or that they will be subject to legal problems, or that they will be faced with a public relations nightmare. Many parents fear that their child will be left behind, or that their child will be exposed to irreversible psychological and/or physical traumas, or that their child will be a "problem child." Most everybody fears violent outbursts, or that we are not doing enough for children, or that children will learn bad behaviors that they will carry into adulthood to the detriment of society. This essay provides a brief history of fear in the evolution of schooling in America and the role fear plays in First Amendment conflicts in American schools. We offer a specific analysis of Morse v. Frederick to highlight the ongoing iterations of fear in our schools. We argue that Morse is an iteration of ongoing fears in our public schools-fears that are long rooted in American history, and that are unlikely to go away any time soon. 

Author

Kevin A. Johnson, California State University Long Beach  - Contact Me

Co-Author

Craig R. Smith, California State University Long Beach  - Contact Me

Parrhêsia: A Situational Ethics of Free Speech and Communication Law

Many scholars of communication law and policy consider the ethics of free speech to be a matter of prime importance. Researchers have generally taken one of two orientations when theorizing about who should carry the primary burden for ethical public communication: receivers or disseminators of speech. While these two positions are not mutually exclusive, the tendency to focus on either the dissemination or reception of speech omits the dynamic situatedness and constitutive function of symbolic activity. This paper understands communication as situational, in that it arises in a background of dynamic social relations, mediated by matrices of power, history, and text. I argue that Foucault's parrhêsiastic situation could supplement work that has already been produced in the field that address questions of communication ethics, free speech, and the law. I substantiate this claim in three movements. 1) I provide a brief introduction of Foucault's theory of parrhêsia, describing it as a situational theory. I also offer an explanation for why this work may have not-yet been broadly taken up by First Amendment studies or communication law and policy scholars. 2) I offer a sense of the state of the field's uptake of Foucauldian notions of parrhêsia. As I detail this scholarship, I show how parrhêsia supplements ethical works on free speech, expression, and communication law by providing additional warrants to other scholars' claims, or by pushing their insights into additional directions. 3) I conclude with implications and future directions for the study of ethics of free speech. 

Author

Alvin J. Primack, University of Pittsburgh  - Contact Me

The First Amendment Case for Addressing Fake News on Social Media or: How I Learned to Stop Worrying and Love the Algorithm

After revelations that Russian operatives used influential media websites like Facebook and Twitter to spread fake news during the 2016 presidential election, these Internet giants vowed to take steps to prevent disinformation from adversely affecting our democracy. However, the flood of fake news in the aftermath of the Parkland school shooting raises the specter that the steps implemented-whether changes to the algorithms or other safeguards designed to address fake news-have not adequately addressed this online scourge. This article makes the case, pursuant to First Amendment principles, for the government to address fake news in order to protect our self-governing democracy. While the free speech clause of the First Amendment includes an individual right against government interference with private speech, a key principle of the First Amendment is to seek and maintain a system of free expression in order to fulfill the constitutional purpose of creating and sustaining a self-governing republic. Thus, the government has a duty to maintain our democratic form of government when private interests threaten the citizenry's ability to be well informed and to make informed decisions. The focus here is on the government's power to control false or "fake" news, and this article makes the case that social media companies like Facebook cannot be relied upon to limit or prevent disinformation on their own accord; rather, this article makes the First Amendment case to address fake news through sound policies that pass legal scrutiny. 

Author

Michael Park, Emerson College  - Contact Me

User-Generated Content and the Regulation of Reputational Harm: The Case of the Boston Marathon Bombing

Professional editors and reporters face difficult decisions about naming possible suspects in ongoing investigations. Wrongfully implicating someone in a criminal investigation can cause harm to the person's reputation, subject him or her to threats, and leave the person scarred emotionally. What happens when ordinary citizens without professional journalistic training speculate about criminal investigations on internet platforms? What is the impact on the reputations of those discussed, how is it remedied, and what does this say about the relationship between different forces of "regulation" (following Lawrence Lessig's typology) of online speech that come into play? Using media coverage, legal documents, and online commentary, I examine a recent crowd-sourced investigation that brought two instances of wrongful scrutiny: the search for the 2013 Boston Marathon bombing suspects. The two cases offer distinct but complementary windows on the reputational consequences of investigative speculation on user-generated content platforms. Through its focus on the voluntary activity of non-professionals, the paper thus also engages with the conference theme of "communication at play." I argue that these case studies reveal unique reputational concerns but also remedies that are themselves contextually specific to the digital platforms involved. Further, the diversity of ethical orientations embraced by different actors complicates the perhaps tempting caricature of "internet vigilantes" run amok and arguably does little to boost the argument for imposing greater liability on platforms for user-generated content. At the same time, the cases suggest that self-imposed speech norms on such platforms are far from perfect regulatory tools -- even, in some instances, despite the good intentions of most users. 

Author

Ben Medeiros, Newman University  - Contact Me