Assoc. Prof, Cyber Law, U.S. Naval Academy; Sr. Fellow, @SpeechFuture; Author: 26 Words That Created the Internet; US of Anonymous; Liar in a Crowded Theater
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Apr 27, 2023 • 17 tweets • 3 min read
Last year, I wrote a book about why the First Amendment protects anonymity. Anonymous speech is deeply rooted in the U.S. The Federalist Papers, Common Sense, etc., all the way to modern online bulletin boards. This year, new laws and bills threaten this tradition more than ever.
The U.S. Supreme Court first recognized the right to anonymous association in 1958, when it blocked segregationist Alabama officials' attempts to force the NAACP to disclose its membership lists. Two years later, it extended this right to anonymous speech, finding that the
Apr 1, 2023 • 8 tweets • 3 min read
The main issue remaining for the jury in Dominion v. Fox is whether Fox made the false statements with actual malice. The court has already ruled that the statements are false. Normally, actual malice is a heavy lift, as the plaintiff must demonstrate by clear and
convincing evidence that the D knew the statements were false or made the statements with reckless disregard of falsity (in other words, the D entertained serious doubts about the truth). The judge held off on ruling on actual malice, but the opinion’s summary of
Apr 1, 2023 • 10 tweets • 4 min read
Amazon is facing another lawsuit from the families of teenagers who were able to buy an industrial strength chemical that has no consumer use and use it to commit suicide. This week Amazon filed a motion to dismiss. It’s important for all customers to see Amazon’s arguments.
This is the core of Amazon’s argument. Blame the third party seller. Blame the teenager. Blame anyone except the website where this chemical was inexplicably available.
Apr 1, 2023 • 8 tweets • 2 min read
After reading the 130-page Dominion opinion for the third time (I know how to have a fun Friday night), I think actual malice is the defendant's only hope not only in this case, but probably the other voting machine defamation cases. Including those against much smaller outlets
that unlike Fox News, face an existential threat from this litigation. So that makes me wonder how these developments might slow down the movement to roll back NYT v. Sullivan and its progeny. Since these cases were filed, it was apparent that actual malice would be an important
Fox’s only hope at trial is convincing jury that there was not actual malice. Good thing for Fox that SCOTUS has not taken Justice Thomas and Gorsuch’s call to revisit NYT v. Sullivan.
Mar 2, 2023 • 8 tweets • 2 min read
Last year I published a book about the long history of anonymous speech in the United States. This bill is not just a little unconstitutional. It is wildly unconstitutional. Here's why.
The United States has a long history of anonymous and pseudonymous speech. Think: Common Sense, Letters from a Farmer in Pennsylvania, the Federalist Papers by Publius.
Feb 28, 2023 • 4 tweets • 1 min read
Yes! The first day of every cyber law class that I teach is devoted entirely to Marbury v. Madison.
The second day is far more modern - Youngstown Sheet and Tube.
Feb 17, 2023 • 5 tweets • 2 min read
My book is available for preorder on Amazon! a.co/d/0q9VjTr
We have a summary!
Feb 17, 2023 • 8 tweets • 2 min read
Actual malice is an incredibly high bar. And after reading this entire brief, I think there is a very good chance that Dominion met it. int.nyt.com/data/documentt…
The text messages and emails that are being widely quoted - they are absolute nightmare fuel for a media defense lawyer. I shouldn’t have read this brief right before bed.
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