Welcome to the first Issue of Volume 75 of The Federal Communications Law Journal. We are the nation’s premiere communications law journal and the official journal of the Federal Communications Bar Association. This year, as we celebrate the 75th anniversary of this publication, we look forward to sharing articles and student Notes that showcase the range of issues relevant to the field of technology and communications law.
To start, this first Issue provides thoughtful scholarship on topics including influencer marketing, data privacy, artificial intelligence, and the evolution of First Amendment jurisprudence.
This Issue begins with an examination of how best to protect journalists if the Supreme Court acts on recent calls to reconsider the landmark defamation case New York Times Co. v. Sullivan. In this article, Matthew L. Schafer, Adjunct Professor of Law at Fordham University School of Law, and Jeff Kosseff, Associate Professor of Cybersecurity Law at the United States Naval Academy, argue for a federal Freedom of Speech and Press Act that would codify the protections established in Sullivan.
This Issue also features four student Notes. In the first Note, Delaney Dunn dives into the ever-growing world of influencer marketing. She argues that influencers should be held accountable for fraudulently inflating their followings and deceiving their brand partners.
The second Note, written by Thompson Hangen, focuses on the privacy risks involved with a Central Bank Digital Currency. He argues that, while establishing a Central Bank Digital Currency would strengthen the U.S. dollar, it necessitates an expansion of federal financial data privacy laws.
The third Note, written by Dallin Albright, explores the potential consequences of automated journalism. Albright identifies gaps in libel law regarding news content generated with artificial intelligence. He argues the existing negligence standard is best suited to addressing instances of libel resulting from algorithmic speech.
Finally, our last student Note in the first Issue was authored by Robin Briendel. She proposes a four-step test for determining when school administrators possess the authority to regulate student speech occurring off-campus.
The Editorial Board of Volume 75 would like to thank the FCBA and The George Washington University Law School for their continued support of the Journal. We also appreciate the hard work of the authors and editors who contributed to this Issue.
The Federal Communications Law Journal is committed to providing its readers with in-depth coverage of relevant communication law topics. We welcome your feedback and encourage the submission of articles for publication consideration. Please direct any questions or comments about this Issue to email@example.com. Articles can be sent to firstname.lastname@example.org. This Issue and our archive are available at http://www.fclj.org.
By Matthew L. Schafer & Jeff Kosseff
Until 1964, states were free to penalize journalists, activists, and others for criticizing the most powerful figures in the United States. That changed with the Supreme Court’s opinion in New York Times Co. v. Sullivan, which requires public officials suing for defamation to establish actual malice, a daunting hurdle. Over the next three decades, the Court expanded on Sullivan and built a framework that provides vital First Amendment protections for modern journalism, online commentary, and other criticism. Those safeguards face their greatest threats ever, as high-profile figures weaponize defamation lawsuits and two Supreme Court justices call on their colleagues to join them in reconsidering Sullivan. As the Supreme Court has recently demonstrated, it will not shy away from rethinking even the most vital and established constitutional protections. To prevent the damage to free speech caused by a sudden reversal of Sullivan, we propose the federal Freedom of Speech and Press Act, which codifies many of the protections of Sullivan and its progeny and preempts state defamation laws that do not satisfy certain minimum standards that preserve “uninhibited, robust, and wide-open” debate across the country.
By Delaney Dunn
Influencer marketing is the future of the advertising industry, and it does not appear to be a promising one. Marketers sought out influencers to avoid the shortfalls of traditional marketing but instead found an entirely new set of concerns. Influencers are able to exploit the present system for their own personal gain with little regard for the companies they are hurting and little concern for the repercussions of their actions. They are paid based on likes and follows on their social media pages, and they regularly falsely inflate these numbers to steal money out of the pockets of the brands they are dealing with.
Social media platforms are aware of the problems companies face on their websites but are unwilling to assist. At present, companies have no means of recourse to recoup their losses either by themselves or with the assistance of others, but with a broader interpretation of existing state fraud statutes, courts could rectify this situation. Courts have the power to hold influencers accountable, recover company losses, and potentially rectify the scourge of bots on social media entirely.
By Thompson J. Hangen
We live in the digital age—a time of rapidly increasing digitization and connection of information, personal data, and devices. Digital, decentralized systems to store value and allow for peer-to-peer transactions (i.e., cryptocurrencies) are increasingly popular. Governments worldwide are considering development and implementation of central bank digital currencies (CBDCs), which offer a path to transform and digitize traditional financial systems by offering consumers an online version of cash. CBDCs give central banks significant control over implementing monetary policy system-wide at will. CBDCs also present significant data privacy questions.
This Note considers the technology that has given rise to CBDC projects in countries worldwide and examines the extent to which current federal data privacy standards—in particular, the Gramm-Leach-Bliley Act—afford data privacy protections for individuals. This Note concludes that the risk to individual consumers is significant; the consumer’s entire CBDC transaction history would be laid bare to the Federal Reserve System and potentially other institutions. The solution is for Congress to expand federal data privacy law to encompass the types and forms of information that are likely to be collected from consumers in the routine course of CBDC use.
By Dallin Albright
Journalists use artificial intelligence in a variety of capacities, and it is increasingly used to produce news. As this technology becomes more sophisticated, algorithms will create a greater portion of the stories people read on a regular basis. Without proper editorial oversight, this technology could lead to the publication of false and defamatory statements. This presents a novel challenge for courts applying the actual malice standard. Under this standard, plaintiffs who are public figures or public officials must normally prove that a defendant knew a statement was false, acted with reckless disregard for the truth, or harbored ill will or intent to injure the plaintiff. This standard is difficult to apply to statements produced by artificial intelligence because the algorithms that generate statements cannot be demonstrated to possess malice or doubt concerning a statements’ veracity in the traditional way. This Note proposes eliminating the malice requirement for statements produced by artificial intelligence, and instead applying the negligence standard used for libel claims by private individuals. This would assign to operators and creators of autonomous journalism software a reasonable duty of care to ensure that the information they publish is accurate and nondefamatory by following industry procedures for promoting journalistic accuracy. The unique nature of artificial intelligence as it applies to speech requires that courts adapt their existing legal standards to match the challenges presented by new technologies.
Here, There, and Everywhere: Defining the Boundaries of the “Schoolhouse Gate” in the Era of Virtual Learning
By Robin Briendel
The Internet and social media have caused a dramatic change in how today’s students communicate. With virtual learning remaining prominent as the COVID-19 pandemic endures, and students continuing their near-constant use of phones and computers, the line of what constitutes “on-campus” activity is blurry at best. This lack of clarity has significantly complicated the ability of school officials and courts to determine what speech is outside the scope of schools’ disciplinary authority.
This Note evaluates Supreme Court precedent concerning the regulation of student speech, the circuit courts’ differing approaches to tackling off-campus student speech, as well as the Supreme Court’s recent decision, Mahanoy Area School District v. B.L., addressing the scope of schools’ authority to punish students for speech generated off-campus on social media. Ultimately, this Note concludes that the ill-defined standards concerning the ability of school officials to discipline students for off-campus speech create massive amounts of uncertainty and problems for students, schools, and the courts. This Note suggests that the Supreme Court should articulate a uniform mode of assessment for school administrators and courts to use for determining whether a student’s speech is entitled to First Amendment protection.