UnCommon Law

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4. Regulating Social Media as a Threat to Humanity Jul 29, 2021

Show notes

Concerns over the harmful impact of social media are rising to a fever pitch. In the past decade, everyone from conspiracy theorists to foreign governments have used social media to spread election disinformation, sow discord, and peddle viral conspiracies.

This month, the Biden administration and the U.S. Surgeon General accused social media platforms of being the primary source of misinformation about Covid-19 vaccines. Likewise, a July 6 paper warned that the invention of social media could cause human society to fail “catastrophically, unexpectedly, and without warning” if it continues down its current path.

In the fourth and final episode in our UnChecked series, we are looking at some of the public-policy solutions being proposed to rein in the threats posed by Big Tech and social media.

In this episode of [Un]Common Law we speak with:

Courtney Rozen, White House reporter for Bloomberg Law
Francis Fukuyama, author and professor of political science at Stanford University
Alex Engler, AI Data & Democracy Fellow at Brookings Institution
Tom Wheeler, former chairman of the FCC and visiting fellow at Brookings Institution
Martha Minow, professor of law at Harvard University

3. What Would Breaking Up Big Tech Change? Jul 19, 2021

Show notes

Cracking down on large tech companies may be one of the few remaining areas of political consensus in Washington D.C. However, many legal experts caution that antitrust cases could take years to complete and the outcomes are far from certain.

Still others claim that the recent focus on antitrust is more about punishing tech platforms for being successful. They argue that it would have little impact on more pressing concerns, such as the spread of misinformation, the erosion of privacy, and the acceleration of political polarization.

In this episode of [Un]Common Law we speak with:

Derek Bambauer, professor of law at the University of Arizona, where he teaches internet law and intellectual property.
Sally Hubbard, attorney and director of enforcement strategy at the Open Markets Institute.
Chris Koopman, executive director at the Center for Growth and Opportunity at Utah State University.
David McLaughlin, reporter for Bloomberg News covering antitrust, finance, and mergers and acquisitions.

2. Social Media Bans Are Not About Free Speech Jun 28, 2021

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Permanently revoking users’ access to social media platforms— a practice known as “deplatforming “— isn’t a new concept, but the high-profile ban of President Donald Trump has raised new questions about censorship and free speech in the internet age.

For years Twitter famously clung to its identity as “the free speech wing of the free-speech party.” Meanwhile, Facebook employed a policy that mostly excluded politicians from content moderation rules that applied to other users. Yet, within days of the attack on the Capitol on Jan. 6, Twitter, Facebook, and other social media platforms suspended the accounts of the president of the United States.

First Amendment lawyers point out that the Constitution protects against government censorship of speech. However, social media platforms are businesses run by companies. They have terms of service and aren't obligated to provide a platform to anyone. Still, whether one views the deplatforming of a U.S. president as necessary or not, many say the more important question is whether tech companies should be the ones deciding where to set the boundaries for online speech.

In this episode of [Un]Common Law we speak with:

Katie Fallow, senior staff attorney at the Knight First Amendment Institute at Columbia University.
Steve Barnett, professor of communications at the University of Westminster in London.
Lyrissa Lidsky, Dean of University of Missouri Law School.
Jessica Melugin, director of the Center for Technology & Innovation at the Competitive Enterprise Institute.

1. Would Scrapping Section 230 Break the Internet? Jun 21, 2021

Show notes

In the months since the January 6 attack on the Capitol, one thing people on both sides of the political aisle seem to agree on, is that social media bears at least some responsibility for spreading the lies that led to the attack. But, is that true? And if it is, even a little bit, what should lawmakers do about it? Those questions are what [Un]Common Law will explore in our new series called “UnChecked.” A look at the legal doctrines, case history, and legislation that gave birth to the internet as we know it.

This first episode is all about Section 230, the law that makes it possible for companies like Facebook and Twitter to publish content created by their users. Specifically, Section 230 states that, "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, online platforms can’t be held liable for the speech that is posted on their sites. Almost as importantly, Section 230 also gives those platforms the freedom to moderate, or remove content as they see fit.

Many Republicans say Section 230 enables tech companies to censor conservative voices. While some Democrats say the law has allowed platforms to wash their hands of harms associated with hate speech, terrorism, and harassment. Many lawmakers, from both parties, have expressed a willingness to make changes to the status quo, but what those changes look like has yet to be determined.

In this episode of [Un]Common Law we hear from:

Gigi Sohn, former FCC Counselor, now a fellow at the Georgetown Law Institute for Technology Law and Policy.
Jeff Kosseff, professor of cybersecurity law at the U.S. Naval Academy and author of a book about Section 230 called, “The 26 Words That Created the Internet.”
Rebecca Kern, Technology and Cyber Policy reporter for Bloomberg Government.
Jessica Melugin, director of the Center for Technology & Innovation at the Competitive Enterprise Institute.
Elizabeth Banker, former Deputy General Counsel at the Internet Association.
Nabiha Syed, attorney and president of The Markup, an investigative journalism startup that explores how powerful actors use technology to reshape society.

Introducing: UnChecked Jun 03, 2021

Show notes

For our next season of [Un]Common Law, we’re wading into the thorny debate over Big Tech and social media. Companies like Facebook, Google, Amazon, Twitter are much bigger than they were 20 years ago, but is this a problem?

Is Big Tech impinging on your right to free speech? That depends on who you ask. And what about the increased influence of hate-speech, conspiracy theories and disinformation that spread like wildfire online.

Despite bipartisan consensus that something needs to be done, what that something actually might look like differs wildly. So, we’re asking experts, and trying to connect the dots to find out what new internet regulation might look like.

We’re calling this series, UnChecked, and it will be reported out over a series of episodes starting June 14th.

Eric Holder on Diversifying the Judiciary [Bonus Episode: Black Lawyers Speak] Jun 01, 2021

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Earlier this year [Un]Common Law published a podcast series looking at the experiences of African American lawyers and judges working in the legal industry—which, to this day, remains one of the least diverse professions in America. Now, more than a year since George Floyd’s murder, and the wave of soul-searching in the legal industry that followed, 16 of the nation’s largest law firms, nine of which are in the Am Law 200, still do not have even a single Black partner according to a report from the American Lawyer.

Back in January we interviewed former U.S. Attorney General Eric Holder, now a partner with Washington DC-based, Covington & Burling as part of [Un]Common Law's “Black Lawyers Speak Series," and today we are releasing the full Q&A as a bonus episode from that series.

15. If Qualified Immunity Is Bad Policy, Why Can't We Fix It? Apr 29, 2021

Show notes

In the wake of Derek Chauvin’s conviction in the murder of George Floyd, lawmakers in both parties said they were “cautiously optimistic” that the trial could provide new momentum to overcome the political hurdles that have stymied efforts at policing reform.

In a speech before a joint session of Congress on Wednesday, President Joe Biden formally called on lawmakers to resurrect the George Floyd Justice in Policing Act, which among other things, would end the legal practice of granting qualified immunity to police officers.

Qualified immunity was considered a relatively obscure legal doctrine known only to civil-rights lawyers and legal scholars, but after the death of George Floyd, it has now become a common topic in the media, cities, and state legislatures across the country.

In this episode of the UnCommon Law Podcast, we speak with Alexander Reinert, a professor of law at the Cardozo School of Law at Yeshiva University, Clark Neily, a senior vice president for criminal justice at the Cato Institute, and Anya Bidwell, an attorney with the nonprofit Institute for Justice.

14. Derek Chauvin Verdict: Legal Community Reactions Apr 21, 2021

Show notes

It took the jury less than 11 hours, to pronounce Derek Chauvin guilty on all three counts of murder in the second and third degree, as well as second-degree manslaughter. While there are many shoes yet to drop before this case is finally complete. Including sentencing, and there will surely be an appeal after that. Also, attention will now shift toward the criminal trial, later this summer, of the three other Minneapolis Police Department officers who were also present during Floyd’s murder.

The [Un]Common Law podcast now turns to the attorneys for their insights on the verdict. In this episode host Adam Allilngton speaks with Barbara McQuade, former U.S. Attorney and now a professor at the University of Michigan Law School, Somil Trivedi, a senior staff attorney with the ACLU’s Criminal Law Reform Project, and Tiffany Jeffers, an associate professor an associate professor of law and legal practice at Georgetown University Law Center.

13. Closing Arguments in the Derek Chauvin Murder Trial Apr 21, 2021

Show notes

With closing arguments completed on Monday, April 19, former police officer Derek Chauvin’s fate rests in the hands of a jury of his peers.

Chauvin is charged with second-degree murder, third-degree murder and second-degree manslaughter.

Joining host Adam Allington to discuss closing arguments in the nation’s most intensely-watched police brutality trial since Rodney King is Kami Chavis, a professor of law and director of the criminal justice program at Wake Forest University School of Law.

12. Could Chauvin Win an Appeal if Convicted? Apr 16, 2021

Show notes

Closing statements in the Derek Chauvin trial are set to begin on Monday. The former Minneapolis police officer is facing charges of second-degree murder, third-degree murder, and second-degree manslaughter. Many attorneys agree that Chauvin faces an uphill battle to avoid being found guilty on at least one of the charges. That sets up, what would surely be, an appeal of the verdict.

Has Chauvin’s defense team successfully set up potential issues for an appeal in the event of a guilty verdict? What are the chances that an appeal would be successful? Former federal prosecutor and NBC legal analyst Glenn Kirschner joins [Un]Common Law to discuss.

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