UCI School of Law Dean Chemerinsky talks free speech laws in digital era
The first constitutional law class ever taught by Erwin Chemerinsky, the founding dean of UCI School of Law, took place back in the fall of 1980—a time when personal computers didn’t yet exist, and a mention of the Web conjured the image of a spider named Charlotte.
Today, that world is unrecognizable. Social media platforms like Facebook and Twitter have revolutionized how we communicate and connect with one another; new technology like smartphones make accessible any information on the Web at the touch of a fingertip.
“It’s interesting to think about how all this technology has developed in such a brief period of time,” Chemerinsky said last Tuesday in Redondo Beach as the inaugural speaker of Leaders in Action, a distinguished speaker series organized by Temple Menorah, The Klein Chaplaincy Service and the Rosenberg Cultural Center. “Yet we haven’t in any major way changed constitutional law.”
The fast advancement and ubiquity of the Internet have given way to a social landscape unconscionable to the writers of the U.S. Constitution and free speech laws. So how do we make sense of first amendment laws in this new era?
Now is the time, Chemerinsky suggested, to address those assumptions in free speech laws that are no longer valid today.
A graduate from Harvard Law School, Chemerinsky has cultivated a distinguished career. Before his current post as dean of UCI Law School, he taught at the law schools of DePaul University, University of Southern California and Duke University.
Considered one of the nation’s top scholars on the subject, Chemerinsky has also testified before Congress and argued cases before the U.S. Supreme Court.
One such case was the 2005 libel case—Tory v. Cochran—which began when Johnnie Cochran, the famed attorney who represented O.J. Simpson in the historic murder trials, sued former client Ulysses Tory for libel and invasion of privacy when he publicly accused him of being a thief and accepting bribes.
A trial judge, instead of rewarding money damages as is traditional for defamation, ordered an injunction against Tory—a ruling that Chemerinsky strongly believed to be a clear violation of Tory’s right to free speech.
On March 22, 2005, Chemerinsky appeared before the U.S. Supreme Court to argue the case. It ruled a whopping 7 to 2 in his favor, deciding that the injunction was impermissible.
Since then, however, injunctions have increasingly become the sought remedy in defamation cases, he explained, because defamatory statements now often take place in the largely unregulated virtual realm where a fleeting post on Facebook or Twitter can be conjured worldwide through a search engine.
“In the fall of 1980,” he said, “Only a relatively small group of people had the ability to reach a mass audience,” such as owners of large newspapers, broadcast licenses, major publishing houses and record companies.
“Now compare that to today,” Chemerinsky said. “Anyone who has a smartphone can reach tens of thousands, hundreds of thousands, millions of people instantaneously.
Additionally, the emergence of online documentation and social media has transformed our notion of privacy and what we consider to be an invasion of it, Chemerinsky said. Even before any semblance of social media existed, he had unwittingly experienced it firsthand.
Back in 1994, he received a call from a producer at ABC’s “Nightline.” The producer wanted to know, Chemerinksy explained, if he’d be willing to guest on an upcoming show on privacy and how much personal information can be learned through public sources via the Internet, which at the time was still in its early stages.
Chemerinsky agreed, but stopped short when he was asked for his social security number. As it turned out, the folks at “Nightline” were hiring an information developer to extract as much of his personal information off the Web.
Under the condition that this information be shared with him prior to the show, he signed on reluctantly.
The next day, Chemerinsky came into the studio for the taping. The show was about to start, and he still had not heard back from the producer. He shortly learned that the producer had pulled a fast one on him again: they decided not to clue him in, so they could capture his “spontaneous reaction” on camera.
“We went on air, and they didn’t find anything embarrassing about me. After all I’ve led a pretty bland life,” he said, prompting chuckles, “but it was still stunning how much they found out.”
Needless to say, with the prevalence of social media and development of the Web and information technology, the ability to learn about people on the Internet has increased exponentially since the “Nightline” special two decades ago.
That brought him to another point: “We can have lots and lots of people speaking at the same time over the Internet,” Chemerinsky said, “but how are we going ensure quality in that information?”
With the newspaper industry at a fast decline due to increasing preference for instantaneous online news, it’s time to rethink how we fund the newsgatherers bearing witness, doing investigative reporting and running foreign bureaus, he said.
He called it “one of the most profoundly difficult issues when we think about free speech.”
“Justice William Douglas said, we won’t lose our freedoms all at once … the loss of freedom will happen slowly, incrementally over time,” Chemerinsky said. “We may not realize until it’s gone.”
The next Leaders in Action talk will be presented by Rabbi Arthur Gross-Schaefer on March 13. He will discuss ethical decision-making in the 21st Century in public, private and work lives. The final talk of the series, which takes place April 16, will feature Dr. Elliott Dorff, who will discuss the impact of technology and medicine in the 21st Century. For more information, visit www.ourleadersinaction.com.