[EL] ELB News and Commentary 8/14/17

Mon Aug 14 07:53:08 PDT 2017

“Cheap Speech and What It Has Done (to American Democracy)”<http://electionlawblog.org/?p=94293>
Posted on August 14, 2017 7:51 am<http://electionlawblog.org/?p=94293> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this draft <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017598> for SSRN (forthcoming, in the First Amendment Law Review’s symposium on “Distorting the News: ‘Fake News’ and Free Speech<https://falrunc.wordpress.com/symposium/>“).  Here is the abstract:
In a remarkably prescient article in a 1995 Yale Law Journal symposium on “Emerging Media Technology and the First Amendment,” Professor Eugene Volokh looked ahead to the coming Internet era and correctly predicted many changes. In Cheap Speech and What It Will Do, Volokh could foresee the rise of streaming music and video services such as Spotify and Netflix, the emergence of handheld tablets for reading books, the demise of classified advertising in the newspaper business, and more generally how cheap speech would usher in radical new opportunities for readers, viewers, and listeners to custom design what they read, see, and hear, while concomitantly undermining the power of intermediaries including publishers and book store owners.
To Volokh, these changes were exciting and democratizing. The overall picture he painted was a positive one, especially as First Amendment doctrine no longer had to deal with the scarcity of broadcast media to craft special First Amendment rules curtailing some aspects of free speech. As this article for a First Amendment Law Review symposium on “Fake News” argues, twenty-two years later, the picture of what cheap speech has already done and is likely to still do — in particular to American democracy — is considerably darker than Volokh’s vision. No doubt cheap speech has increased convenience, dramatically lowered the costs of obtaining information, and spurred the creation and consumption of content from radically diverse sources. But the economics of cheap speech also have undermined mediating and stabilizing institutions of American democracy including newspapers and political parties, with negative social and political consequences. In place of media scarcity, we now have a media firehose which has diluted trusted sources of information and led to the rise of “fake news” — falsehoods and propaganda spread by domestic and foreign sources for their own political and pecuniary purposes. The demise of local newspapers sets the stage for an increase in corruption among state and local officials. Rather than democratizing our politics, cheap speech appears to be hastening the irrelevancy of political parties by facilitating the ability of demagogues to secure support from voters by appealing directly to them, sometimes with incendiary appeals. Social media also can both increase intolerance and overcome collective action problems, both allowing for peaceful protest but also supercharging polarization and raising the dangers of violence in the United States.
The Supreme Court’s libertarian First Amendment doctrine did not cause the democracy problems associated with the rise of cheap speech, but it may stand in the way of needed reforms. For example, in the campaign finance arena the Court’s doctrine and accompanying libertarian ethos may stymie efforts to limit foreign money flowing into elections, including money being spent to propagate “fake news.” The Court’s reluctance to allow the government to regulate false speech in the political arena could limit laws aimed at requiring social media sites to curb false political advertising. Loose, optimistic dicta in the Justice Kennedy’s majority opinion for the Court in 2017’s Packingham v. North Carolina case also may have unintended consequences with its infinitely capacious language about First Amendment protection for social media. In the era of cheap speech, some shifts in First Amendment doctrine seems desirable to assist citizens in ascertaining truth and bolstering stabilizing institutions. Nonetheless, it is important not to fundamentally rework First Amendment doctrine, which also serves as a bulwark against government censorship and oppression potentially undertaken in an ostensible effort to battle “fake news.”
Non-governmental actors, rather than the courts and government, are in the best position to ameliorate some of the darker effects of cheap speech. Social media hosts and search sites such as Facebook, Google, and Twitter can assist readers, viewers, and listeners in ferreting out the truth if there is the commercial will to do so. Consumer pressure may be necessary to get there, but it is not clear if consumers or shareholders will have the power to move dominant market players who do not want to be moved. Fact checks can also help. Subsidies for (especially local) investigative reporting can also help the problems of corruption and bolster the credibility of newspapers and other supports for civil society. But nothing is certain to work in these precarious times, and the great freedom of information which Volokh rightly foresaw in the era of cheap speech is coming with a steep price for our democracy.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, social media and social protests<http://electionlawblog.org/?cat=58>

“Perkins Coie’s Marc Elias on ‘Explosion’ in Election Law”<http://electionlawblog.org/?p=94291>
Posted on August 14, 2017 7:46 am<http://electionlawblog.org/?p=94291> by Rick Hasen<http://electionlawblog.org/?author=3>
Elias audio interview<http://www.law.com/sites/almstaff/2017/08/11/perkins-coies-marc-elias-on-explosion-in-election-law/> on law.com.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Voter fraud in Arizona: What it looks like, how often it happens and how it is fought”<http://electionlawblog.org/?p=94289>
Posted on August 14, 2017 7:43 am<http://electionlawblog.org/?p=94289> by Rick Hasen<http://electionlawblog.org/?author=3>
The Arizona Republic reports.<http://www.azcentral.com/story/news/politics/arizona/2017/08/14/voter-fraud-arizona-how-often-does-happen-how-stopped/534986001/>

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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

“No early fans of Trump, the powerful Koch network still wields influence on White House policy”<http://electionlawblog.org/?p=94287>
Posted on August 14, 2017 7:37 am<http://electionlawblog.org/?p=94287> by Rick Hasen<http://electionlawblog.org/?author=3>
LAT reports.
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Posted in lobbying<http://electionlawblog.org/?cat=28>

“Racial Gerrymandering and Vote Dilution: Shaw v. Reno in Doctrinal Context”<http://electionlawblog.org/?p=94285>
Posted on August 14, 2017 7:35 am<http://electionlawblog.org/?p=94285> by Rick Hasen<http://electionlawblog.org/?author=3>
James Blumstein has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3012670> on SSRN (forthcoming, Rutgers Law Journal).  Here is the abstract:
In the opening sentence of her opinion for the Court in Shaw v. Reno, the North Carolina racial gerrymander case, Justice O’Connor observed that the case “involve[d] two of the most complex and sensitive issues” that the Supreme Court has had to confront: “the meaning of the constitutional ‘right’ to vote, and the propriety of race based state legislation designed to benefit members of historically disadvantaged racial minority groups.” Had she stopped there, Justice O’Connor would have had consensus within the Court. But she went on to grapple with these issues and has spurred further discussion and debate about race and voting rights–a topic that had already gained political center stage when President Clinton withdrew his nomination of Professor Lani Guinier to serve as Assistant Attorney General for Civil Rights.
This article will analyze and evaluate Shaw in its doctrinal context and then examine some still unresolved questions. The Supreme Court’s resolution of those issues will eventually determine whether Shaw is an analytically significant and doctrinally influential case or whether it reflects a response to a unique set of substantive and procedural circumstances that are non-replicable.
The article begins in Section II with a discussion of the procedural context of the Shaw case and a consideration of the substantive and practical implications of the district court’s decision. In Section III, the article then examines the nature of the plaintiffs’ claim by explaining the race nondiscrimination paradigm, concluding that the Court was correct in holding that vote dilution and race discrimination are analytically distinct theories with independent lines of case law supporting each one. The precedent-oriented dissent of Justice White is analyzed and critiqued in depth. The conclusion is that Justice White erroneously conflates the vote dilution and the race discrimination lines of cases.
The principle-oriented dissent of Justice Souter is examined in detail and found to be both intellectually honest and substantively startling. Justice Souter argued that race-based Equal Protection claims involving districting should be treated differently than the same claims in other contexts. His rationale for this categorical approach was that race cannot be avoided in legislative districting, and the use of race does not disadvantage any individual because of race. The article concludes that Justice Souter’s approach is excessively tolerant of the use of race and in considerable tension with the nondiscrimination principles emanating from Brown. Further, Justice Souter’s observation that race is customarily a part of the districting process does not explain why that fact, if such it be, should be constitutionally legitimized. To the extent that Justice Souter’s views were influenced by his understanding of the Voting Rights Act, the article concludes that neither Section 5 nor Section 2 of that Act supports Justice Souter’s analysis.
Finally, in Section IV, the article examines five issues left unresolved by Shaw. It concludes that Shaw cannot sensibly and with doctrinal integrity be limited to weird districts. Under the principle of racial reciprocity, it concludes, any intentional use of race should trigger strict scrutiny unless government can show that the same districting decision would have been taken in the absence of racial considerations. The article concludes by considering how the Shaw compelling interest. standard should be applied, analyzing the nature of an appropriate “compelling interest,” how the “narrow tailoring” inquiry should be addressed, and how the burden of proof should be allocated under strict scrutiny.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>

More SCOTUSBlog Posts on Wisconsin Partisan Gerrymandering Case<http://electionlawblog.org/?p=94283>
Posted on August 11, 2017 1:27 pm<http://electionlawblog.org/?p=94283> by Rick Hasen<http://electionlawblog.org/?author=3>
Ned Foley<http://www.scotusblog.com/2017/08/symposium-wechsler-history-gerrymandering/>
Eric McGhee<http://www.scotusblog.com/2017/08/symposium-efficiency-gap-measure-not-test/>
Dan Tokaji<http://www.scotusblog.com/2017/08/symposium-path-thicket-first-amendment-right-association/>

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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

The 2017 Election Law Teacher Database<http://electionlawblog.org/?p=94276>
Posted on August 11, 2017 9:00 am<http://electionlawblog.org/?p=94276> by Rick Hasen<http://electionlawblog.org/?author=3>
…is now available at this link.<http://electionlawblog.org/wp-content/uploads/Election-Law-Database-2017.xlsx>
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Posted in election law biz<http://electionlawblog.org/?cat=51>, pedagogy<http://electionlawblog.org/?cat=23>

The End of the Blue Slip Looks Like It’s Coming for Circuit Court Nominees<http://electionlawblog.org/?p=94274>
Posted on August 11, 2017 8:01 am<http://electionlawblog.org/?p=94274> by Rick Hasen<http://electionlawblog.org/?author=3>
This is expected<http://www.politico.com/story/2017/08/11/senate-judges-democrats-trump-241448>, and it will mean a big shift in the courts to the right.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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