Schedule

• Friday April 8

  Jerome Greene Hall, Room 104, Columbia Law School, or Online 

  Columbia Law School

  435 W. 116th St.

  New York, NY 10027

  9:15AM – 9:45AM EDT

  Welcome 

  • Lee C. Bollinger, President, Columbia University 
  • Jameel Jaffer, Knight First Amendment Institute at Columbia University
  • Genevieve Lakier, Knight First Amendment Institute at Columbia University

  9:45AM – 11:00AM EDT

  Lies in historical context

  Public discussion of the problem of lies in the United States tends to assume its novelty—that at no point in history was public agreement about factual truth so contested and uncertain. But is this true? What can we learn from historical battles over propaganda, falsehoods, and distrust of institutions? And if we are now experiencing an epistemic crisis, what are its sociological, political, and economic roots?  

  Panelists

  • RonNell Andersen Jones, University of Utah S.J. Quinney College of Law
  • Sam Lebovic, George Mason University
  • Sonja R. West, University of Georgia School of Law
  • John Fabian Witt, Yale Law School

  Moderator

  • Katy Glenn Bass, Knight First Amendment Institute at Columbia University

  View Paper Abstracts

  Presuming Trustworthiness

  RonNell Andersen Jones and Sonja R. West

  This paper investigates how justices of the U.S. Supreme Court have abandoned a once-vibrant presumption of press trustworthiness and will contrast this with the Court’s ongoing willingness to presume the credibility of other speakers. It explores both the potential causes of the decline and the potential consequences for democracy that accompany it. 

  Fake News, Lies, and Other Familiar Problems

  Sam Lebovic

  This paper argues that the contemporary crisis of fake news has deep historical roots in recurring problems of democratic public opinion, including public distrust of and disengagement from political life; the underproduction of information needed for self-governance; and cynical and self-interested political propaganda. These problems have been exacerbated and made more visible by shifts in the political economy of the media, but they are not new and there is no easy fix. Reform efforts should focus not on trying to eliminate fake news but on trying to cultivate and nurture forms of information and dialogue that can produce a more substantively democratic public sphere.

  Weaponized from the Beginning

  John Fabian Witt

  This paper looks at a striking feature of the modern law of free speech: that it arose simultaneously with the widespread realization that free speech in mass society produced propaganda, lies, and distortion. In the wake of the First World War, early civil liberties advocates were not ignorant of this; they organized their efforts around the problem of what they too called weaponized speech. Key figures in the early civil liberties movement aimed to build a vibrant political economy of public opinion by nurturing intermediary institutions like the administrative state and industrial unions. Our dilemma 100 years later, the paper argues, is in large part the decay and collapse of these intermediary institutions for managing the distortion of public opinion.

  Hide Paper Abstracts

  11:00AM – 11:15AM EDT

  Coffee break 

  11:15AM – 12:45PM EDT

  Doctrinal and definitional questions

  What is the First Amendment status of false speech? More specifically, what rules can and should apply to different kinds of false speech (e.g., intentional lies, negligent untruths, wrong opinions) that the government might want to regulate? And what are the justifications for those rules? This panel will explore the thorny foundational doctrinal questions raised by the regulation of false speech.

  Panelists

  • Helen Norton, University of Colorado School of Law
  • Deborah Pearlstein, Cardozo School of Law
  • Mark Tushnet, Harvard Law School
  • Eugene Volokh, UCLA School of Law

  Moderator

  • Carrie DeCell, Knight First Amendment Institute at Columbia University

  View Paper Abstracts

  Distrust, Negative First Amendment Theory, and the Regulation of Lies

  Helen Norton

  This paper argues that First Amendment concerns about the government’s regulation of falsehoods are most often rooted in distrust of the government. The less tangible—or the more diffuse or causally complicated—the harm threatened by certain lies, the less we may trust the government’s decisions about whether and when to find harm. It examines the regulatory challenge of accurately capturing certain lies’ potential to inflict significant harms (for example, in election-related settings) while identifying limiting principles to address our legitimate concerns about the government’s potential for overreach, self-interest, bias, or clumsiness.

  Democracy Harms and the First Amendment

  Deborah Pearlstein

  This paper examines the extent to which principles of free expression have been understood to permit the regulation of speech in the interest of preserving a democratic public order. Recognizing that the U.S. Constitution has long tolerated the regulation of false speech in the interest of protecting against certain individual harms, like damage to a person’s reputation, the paper discusses whether constitutionally cognizable harms may be best understood to include structural harms to constitutional democracy—a concept that extends not only to preserving the legitimacy and integrity of democratic elections, but also to protecting the functional operation of other governing institutions, and to the maintenance of an accessible marketplace of ideas.

  Free Expression and the Regulation of Falsehoods and Lies

  Mark Tushnet

  This paper argues that while there are sometimes good reasons to be leery of regulation of falsehoods, those reasons aren’t generally applicable to lies, which it defines as falsehoods known by the speaker to be false. It notes that there are some other reasons to worry about regulating lies, but those reasons don’t weigh strongly against the constitutionality of laws targeting clearly identified lies about “basic” scientific and physical facts about the world.

  Freedom of Speech and Knowing or Reckless Falsehoods

  Eugene Volokh

  This paper analyzes the distinction made between some factual falsehoods (“seditious libels” against the government, “false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern,” and the like) that are categorically protected even if they’re knowing lies, and other knowing lies that are nonetheless punishable—libels of living individuals, corporations, or their products; nonlibelous falsehoods about individuals (under the false light tort); lies to government officials; likely public crime hoaxes; likely lies by authors aimed at getting publishers to buy their books; and more. Does this distinction make sense, and, if so, how should it be drawn?

  Hide Paper Abstracts

  12:45PM – 2:00PM EDT

  Lunch

  Boxed lunches will be available for pick-up outside of JGH 104. 

  2:00PM – 3:20PM EDT

  Government lies

  Of all the kinds of lies that proliferate in the public sphere, perhaps the most dangerous to the functioning of democratic government are government lies. When the government lies, it threatens the ability of the people to perform their basic democratic function: to judge whether their elected representatives are representing their interests satisfactorily. How should First Amendment doctrine treat government lies?

  Panelists

  • Alan Chen, University of Denver Sturm College of Law
  • Jamal Greene, Columbia Law School
  • Amanda Shanor, University of Pennsylvania Wharton School

  Moderator

  • Catherine J. Ross, George Washington University Law School

  View Paper Abstracts

  Investigative Deceptions Across Contexts

  Alan Chen

  This paper explores why investigative deceptions—intentional lies used to conduct undercover investigations—are celebrated in some contexts and criminalized in others. It argues that social, political, and historical contingencies help explain the differences in how law and society view the acceptability of these lies. It also explores whether debates about the propriety of such deceptions in contexts where they are widely acceptable might help inform First Amendment doctrine in contexts where they are not.

  Government Counterspeech

  Jamal Greene

  This paper explores the distinctive doctrinal treatment of government speech and counterspeech. It argues that government speech and counterspeech should be subject to the same regime, but that within both areas, courts should develop distinctions between different forms of viewpoint discrimination. In general, partisan political or electoral viewpoint discrimination should almost never be permitted, but the government should otherwise enjoy wide leeway to engage in either speech or counterspeech, including to combat misinformation or promote truthful discourse.

  Outlaw the “Big Lie”

  Amanda Shanor

  This paper looks at the “Big Lie”—the false allegation that the 2020 election was stolen from former President Trump. Despite widespread recognition that the “Big Lie” fueled the storming of the U.S. Capitol and that similar lies may cause violence and election subversion in the future, conventional wisdom holds that the First Amendment prohibits lawmakers from doing anything about it. The paper argues that that assumption is incorrect.

  Hide Paper Abstracts

  3:25PM – 4:50PM EDT

  Sociological conditions for the production of truth

  Lies do not occur in a vacuum. Particular institutional and cultural contexts can encourage and enable the production of falsehoods—or the production of truth. This panel will explore some of the sociological facts that encourage, or limit, the dissemination of untruths and the legal structures that enable them, as well as how law can support the production and dissemination of knowledge.

  Panelists

  • Adam M. Enders, University of Louisville
  • Heidi Kitrosser, University of Minnesota Law School
  • Artur Pericles Lima Monteiro, Yale Law School
  • Joseph Uscinski, University of Miami

  Moderator

  • Francesca Procaccini, Harvard Law School

  View Paper Abstracts

  What’s the Harm? An Interrogation of the Societal Impact of Conspiracy Theories and Potential Remedies

  Adam M. Enders and Joseph Uscinski

  This paper draws on social scientific scholarship regarding the causes and consequences of conspiracy theories and misinformation to argue that there is insufficient evidence of the societal harm of conspiracy theories, misinformation, and fake news to warrant a legal doctrine designed to restrict such types of speech. Moreover, the paper demonstrates how centuries-old epistemological quandaries prevent the accurate, impartial classification of ideas as conspiracy theories, misinformation, or fake news in the first place.

  Protecting Public Knowledge Producers

  Heidi Kitrosser

  This paper explores the role of and current cultural, political, and legal threats faced by the government’s “knowledge producers.” These are the public institutions and personnel whose roles are predominantly investigative or otherwise fact-finding-based, research-oriented, or analytical in nature. They include government scientists, economists, and inspectors general, as well as public universities and their faculty members.

  Anonymity, Identity, and Lies

  Artur Pericles Lima Monteiro

  This paper draws on multidisciplinary empirical research to provide a more sophisticated account of the role of anonymity and how it should be a part of the regulatory toolkit for healthier public discourse. It argues that while legal discussion often pits listeners’ interests in disclosure against speakers’ anonymity, research on anonymous communities and social media shows that this is not always true. In fact, anonymity generates new audiences and discursive environments, which disclosure would foreclose.

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