Notre Dame Deception Roundtable, part 3

Session 3 – Defamation and Speech
Discussion Leaders: Amy Gajda, Rebecca Tushnet, Eric Goldman,
Jessica Silbey
Silbey: Alvarez and a theory of deception as speech. The
three opinions are helpfully, though perhaps erroneously, talking about bad
speech in three different ways.  Kennedy:
not problematic b/c it does no harm other than exist.  Idea of “pure speech,” existing in the person
and not expanding out into the world in any way we should care about. Reminds her
of his views of equal dignity/autonomy: individual and relation to their own
speech w/o more. Breyer = speech as relationship-forming, utilitarian view of
what speech does: regulating in terms of an end rather than for itself.  Alito: moral background. Speech forms society
and its values, and that informs his opinion of why the Stolen Valor Act is
good.  Three very different ways of
understanding speech’s function in our lives. Kennedy: Dignity or liberty
enhancing: I can speak b/c of who I am, like Kennedy thinks in Lawrence or
Obergefell: liberty interests have nothing to 
do w/anyone else.  Breyer:
relationships.  Alito: morals.  Contrast captures: when do we care about
particular harms; particular relationships; or background assumptions,
defaults, morals we might care about fostering.
RT: How should we think about empirical evidence in
assessing whether deception-based regulations survive First Amendment scrutiny?
If we took the empirical evidence seriously, courts arguably should (1) approve
more outright bans on commercial speech, and (2) strike down more of these
compromise disclosures, with the probable result of decreasing the total amount
of commercial speech regulation.  Silbey
makes the very persuasive case that the Court is blowing smoke with references
to empirics, at least in political speech cases; it just doesn’t care about the
evidence (see also the reformulation of “corruption” to mean … something that
doesn’t happen).  So instead it has a
normative view of non-deception-based harms. 
What about deception-based harms, though?  Silbey suggests that the Court might treat
them differently which is itself of interest, if deception somehow were more
empirical than other concepts in the 1A space. 
Silbey: as opposed to autonomy or dignity.
Gadja: Alvarez and a right to be forgotten in the US: this
case supports that idea, in a sense. We can in fact change our past in a way
that might be protected, if not in a tort sense we still can’t be punished for
it, especially w/r/t deception and changing the past.
Hartzog: a question of identity. We thought about what
information was owed to consumers; this question is what info do we owe to
those who deal with us, and to what extent does deception play a role in
that?  Goffman: we all play different
roles in our lives.
Gadja: then, when can other people reveal your deception?
Silbey: Kennedy: Sense that there’s something truly private
about certain falsity.
Klass: does he mean that there’s no harm?
Silbey: that’s not what he says, but it appears that it’s
what he means.
Gadja: he does mention fraud and other history/traditions of
finding causes of action.
McGeveran: classic problem of privacy—old law recognized
certain harms as entitlement of individual, but not the invasion feeling around
pure privacy.  Path-dependent. The plus
factor beyond the falsity is historically bound.
Klass: “Stolen Valor Act”—sounds in property right.  Trespassing or free riding. 
Matwyshyn: lying on a dating site is so common, it can’t be
Silbey: you meet people you think are exaggerating a
lot.  You generally let them pretend and
don’t counterspeak; it doesn’t get you anywhere. Alvarez and Gay Olympics cases
say things abou the quality of the thing being designated—we’re uncomfortable
with the gov’t carving out that category of things we care about. 
Said: compare Rachel Dolezal: passing oneself off as a
different race.  Transgender people, some
of whom will transition and some who will never present in any fixed way.
Silbey: Alvarez and gender performance.
Klass: you might be happy in a world where you can’t know
whether genetic sex and gender match. [But are those examples of falsity or
unfalsifiability?] Very different from perspective of Stolen Valor Congress:
they want to live in a differently structured world.
McGeveran: scarcity of the honor as the harm—fake Silver
Stars. What made the SVA different was the problem of fraud on the market—changing
understanding of scarcity of the honor. Even if we ran around debunking, we’d
still have that problem, but the Court is saying too bad. In other cases, we
look at aggregate effect of bad info.
McKenna: there’s scarcity and there’s the reliability of
anyone’s particular claim to have this thing. 
While the former is a general harm, the latter is very particularized:
it hurts the actual honor holders in very specific circumstances, like job
Hartzog: also, scarcity gives you an incentive to lie: you
can avail yourself of that scarcity to benefit yourself [free riding].  Look for incentives to lie, and cost of
challenging the lie which may be socially costly.  Calling someone a liar is uncomfortable!  Should that matter in a more formal way than
it does.
Citron: giving people 5th Amendment immunity is a
nudge allowing/perhaps encouraging lying.
Hartzog: Dan Ariely says we lie all the time.
Matwyshyn: we do seem to value impeachment, allowing
evidence otherwise inadmissible for the purpose of impeachment.
Silbey: Kennedy’s thumb on the scale of liberty makes sense
if we lie all the time.
McKenna: but contrast it with the parts of the decision
where they talk about TM law. [ughs from all around.] They’re more persuaded
that the harms TM is trying to police, so even on the same balance the harms
Klass: this punishment is just too much: a year in
jail.  Our 1A doctrine doesn’t allow us
to distinguish between levels of punishment; wonders whether the case would
have come out the same way if it had been a $50 fine.
Citron: NYT v. Sullivan says that civil penalties can be
more coercive; also true in overbreadth cases. 
Silbey: Kennedy says truth doesn’t need handcuffs or a badge
for vindication.  He’s not talking about
truth for TM.
Matwyshyn: Impersonating a recipient of a public award v.
impersonating a product in TM law.
Hartzog: Sullivan’s breathing room: we need tolerance for
false speech to protect true speech. 
[Not applicable to commercial speech, which explains something about TM,
but not why TM extends to noncommercial speech like movies.]
McKenna: could you say it’s illegal to lie for “personal
benefit” instead of “material gain”?
Silbey: Kennedy’s distinction between Gay Olympics is SVA is
incoherent.  False statements in any
setting, w/o regard for whether lie was for purpose of material gain—he sees TM
as different b/c commercial, even though that’s not accurate about the scope of
the Olympics law or of TM law.
RT: same move is made in In re Tam: §2(a) disparagement is
subject to strict scrutiny b/c it’s not commercial speech, but the deception
bars in §2 are totally ok because Central
.  [Cue my head spinning
McGeveran: invaded interest in SVA is totally diffuse and
generalized, aggregate v. individual, as opposed to the person whose TM
interest looks like it’s been invaded [though as McG would agree, I think, it’s
the law that has decided that there’s been a harm rather than the TM owner
having to show a harm].
Silbey: There is an allergy to identifying diffuse harms;
think also about campaign finance.
Klass: but the owners of these medals are a discrete group.
Silbey: but they’re not the owners of the honor. 
McG: we could call that property.
RT: property, a question of law, is distinct from value, a
question of fact.  What about Spokeo? 
General SCt hostility to derogation from the common law, not just in 1A
but also Article III standings.
McG: the case is a complete hash; says sometimes Congress
can create new causes of action and sometimes it can’t. The problem here was
that the error was procedural; Spokeo didn’t do all the things it was supposed
to do in creating his profile.  Court
punts on when Congress can define an injury that gives standing.
Silbey: In re Tam might turn on registrability v. right to exclusive
use.  Is the lack of registration an
injury that Congress has created different from nonregistration?
McG: In Spokeo, they saw enough bad consequences if they
ruled broadly that they punted.  Either
history or Congress could be enough; in TM, history alone will probably be
enough to find a harm worth legislating over. 
[Though query why that would extend to substantive registration, to
dilution, or sponsorship/affiliation confusion, none of which predate the
McKenna: Alvarez says some forms of lying unattached to harm
that you can’t remedy; defamation is on the other end of the spectrum. Where do
other things fall? Is it about diffuse v. concentrated harm? Is it about kind
of harm—economic, emotional?  Is it about
historical pedigree?  Is it about
empirical evidence?
Klass: Value of speech and degree of harm are both
dimensions.  Public concern/private
concern.  Commercial speech, defamation
of public figures, defamation of nonpublic figures.
[RT: I’d add retail v. wholesale, which may be a component
of empirical evidence. Can you presume from circumstances that harm is so
likely that individual harm need not be shown?]
Silbey: Lying as self-definition; disparaging mark as
self-definition—changes the value of the speech from commercial to self and
self-actualization rather than material gain. 
[But then why do the Slants want a TM registration?]
RT: it may be true that my self-actualization requires me to
suppress your speech, but it’s very hard to characterize a right to suppress
someone else’s use of a mark as self-actualization with no impact on other
specific people. Which is not to say the SCt won’t do it.
Said: takeaway: notion of harm can shift based on interests
balanced against it.  If you have
intent/actual malice requirement, your harm showing will have to be much lower. 
[discussions about disclosure requirements.]
Matwyshyn: disclosures can be lead-ins to future
regulations.  FTC does studies on whether
more aggressive regulation is necessary. 
Said: that seems different, if you use disclosure to signal
the problems [to whom?].
Matwyshyn: to study the industry to understand the market
dynamics. Disclosure to the regulator may then turn into public-facing
disclosure.  [I think that has nothing to
do w/deception, though.]
Hartzog: disclaimers that try to inform you about what’s
actually going on v. disclaimers that try to make you skeptical.  Privacy: “these are what we collect and these
are who we share it with.”  That could be
meaningless to consumers/too complex. Or “there’s a good chance this info could
be used next time you apply for a job.” 
People would be in the dark, but might know enough to avoid harm.
Klass: big literature on what’s an effective compelled
Lipton: some disclosures may be so onerous or awful that the
company will stop doing the thing in order to not need to make the
disclosure.  SEC does that a lot.

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