A NEW GENERATION OF YELLOW JOURNALISM: New Media, Censorship, and the First Amendment Part I

Over the past few months I have not been able to go a single day without hearing about fake news; Facebook’s and Google’s confirmation bias bubble; and the polarization that these have created in the wake of the election of President Donald Trump.   However, this is not anything new. We have heard stories recently about how a fake news story about the Clintons led a person to shoot up a pizza parlor in Washington D.C.; how fake news stories about both candidates potentially affected the outcome of the election.

Yet, in the late 19th century fake news was at the heart of a fierce competition for readership between two New York papers: Joseph Pulitzer’s New York World and William Randolph Hearst’s New York Journal. Both would use fantastical headlines and patently fake news stories to try and out sell the other. This came at time when tensions with Spain over Cuba and the Philippines were high. Most of the stories were focused on a growing anti-Spanish sentiment culminating in a story about a sinister plot by the Spaniards to sink the U.S.S. Maine. This era of yellow journalism ended shortly after the Spanish American War. Heart’s paper the New York Journal published an editorial calling for President McKinley’s assassination shortly before it occurred. There was no significant tie between the editorial and the assassination, yet it shocked both Hearst and Pulitzer out of their sensational attention grabbing head line phase.

Why did the government allow both news-papers to publish false stories?

The First Amendment forbids Congress (and through the Fourteenth Amendment, States and local governments) from making any law that abridges the freedom of speech and the press.  The Supreme Court on multiple occasions has protected these freedoms stating that the only cure for false speech is true speech. Even if it wanted to the government is unable to protect the public from fake news because of the strong prohibition on any limitations of speech by the government. The same prohibition does not apply to private entities. Thus, social media sites such as Facebook and Twitter can and do censor speech. Facebook will censor and or remove anything that is obscene, considered hate speech, overly offensive and or a call to violence.  Facebook primarily relies on the user community to report posts which are then reviewed by subcontractors who decide as to whether the offending post should be taken down. This is something that only a private entity could do, because as stated above (with a few exceptions) the government would be unable to censor these posts.

The question remains, is having Facebook, Twitter and other such entities censor speech a good thing? Should it be treated like yellow journalism was in the 19th Century, allow fake news to run its course and wait for the market place of ideas to correct itself? I will pick this up next time.

Sources:

U.S. Diplomacy and Yellow Journalism, 1895–1898
https://history.state.gov/milestones/1866-1898/yellow-journalism
A Time Line of Yellow Journalism
http://fs2.american.edu/wjc/www/yellowjo/timeline.html
President William McKinley: Assassinated by an Anarchist
http://www.historynet.com/president-william-mckinley-assassinated-by-an-anarchist.htm
Whitney v. California, 274 U.S. 357 (1927)
Justice Brandeis’ Concurring Opinion

 

A NEW GENERATION OF YELLOW JOURNALISM: New Media, Censorship, and the First Amendment Part II

Technology and society have changed since the days of yellow journalism. The readership of the New York World and the New York Journal did not extend much further than the New York City area. Any fake news they printed stayed within New York City limits. At present the internet and more specifically social networks allow news organizations to reach a much broader reader base. Most modern-day consumers turn to the internet for their news. Some go to trusted websites others turn to comedy shows, and some go to their social media news feeds. While competing for a reader’s money is fundamentally different from competing for clicks to a website the headlines still need to be attention grabbing to generate the number of views that web page advertisers want to see. This has led to headlines such as ‘Pope Francis Shocks World, Endorses Donald Trump for President’ and the briefly popular ‘The Amish Commit Their Vote to Donald Trump; Mathematically Guaranteeing Him A Presidential Victory’. These and other similarly false articles made their rounds on social media.

In addition to blatant content censorship, Facebook censors in another way. Facebook creates echo chambers. Like what the New York papers were doing in 19th century giving the reader what they like and what reflects their ideals. In the 19th century it was national pride and anti-Spanish, pro-Cuba sentiment. Today the content is specific to each user. Given this awesome power to guide users’ thoughts in a way that makes George Orwell’s 1984 seem like present day the public has demanded that Facebook do what government cannot. Shield them from the fake news that has begun to pollute the echo chambers of their news feeds, people have demanded that Facebook become the arbiters of truth lending more credence to news stories that appear in their news feed. In response to these public outcries for action Facebook has created a method for removing fake news detailed here.

However, the public’s demand for Facebook to further censor their news feed and Facebook’s, admittedly, limited capitulation flies in the face of the First of Amendment. The cure for fake news is not Big Brother sorting the false statements from the true statements for us; it is for ourselves and others to think critically about our sources and if we have reason to doubt and distrust what we have read. Then it is incumbent upon ourselves to speak truthfully to share the facts (not alternative facts) and allow others in turn to form their own opinions of our work. There is no reason to deny the purveyors of fake news a place in our news feed; some people may derive entertainment from reading the outlandish stories in much the same way many find The Onion (http://www.theonion.com/) to be an enjoyable read. The Onion itself is among most prolific purveyors of fake news. I know what I ask is not easy, but it may be necessary to allow the market place of ideas to thrive.

Sources:
A Time Line of Yellow Journalism http://fs2.american.edu/wjc/www/yellowjo/timeline.html
Alcott and Gentzkow: Social Media and Fake News in the 2016 Election Available at: https://web.stanford.edu/~gentzkow/research/fakenews.pdf
How A Prankster Convinced People The Amish Would Win Trump The Election https://www.buzzfeed.com/ishmaeldaro/paul-horner-amish-trump-vote-hoax?utm_term=.qigKA6mdz#.kmdgM9lVw
From Hate Speech To Fake News: The Content Crisis Facing Mark Zuckerberg http://www.npr.org/sections/alltechconsidered/2016/11/17/495827410/from-hate-speech-to-fake-news-the-content-crisis-facing-mark-zuckerberg
What Facebook Is Doing to Combat Fake News https://www.scientificamerican.com/article/pogue-what-facebook-is-doing-to-combat-fake-news/
Facebook Details Its New Plan To Combat Fake News Stories http://www.npr.org/sections/thetwo-way/2016/12/15/505728377/facebook-details-its-new-plan-to-combat-fake-news-stories

IEPs: Individual Education Plan or Incredibly Exasperating Plan

Individualized Education Plans (hereinafter IEPs) are critical for the educational progress of children with disabilities. An IEP as defined under 20 U.S.C. § 1414(d)(1) is a “written statement for each child with a disability” that includes information regarding the child’s current education level and performance, annual goals, progress reports on the child’s ability to meet those goals, lists of services and resources in place to be provided to the child, and a description of the extent the child will participate with nondisabled students in classes and activities.

The Supreme Court case, Endrew v. Douglas County School District, decided earlier this year should have had parents dancing in the streets. It held that to meet the obligations of the Individuals with Disabilities Education Act (IDEA), IEPs should be created with the goal of educational progress for a child with a disability in mind. The broad focus of IEPs encourages children with disabilities to become thriving students by increasing access to resources and educational goals. However, the Endrew case, while well-intentioned, did nothing to help parents and guardians of those children with disabilities understand the IEP so that they may ensure that their children are getting access to the resources needed for them to thrive.

IEPs are written in highly technical language, making it difficult for the average parent to understand. As a result, the fiercest advocates for these children are potentially excluded from doing so, simply because they cannot understand the document. Moreover, these parents are forced to spend hundreds of dollars to hire an advocate to navigate them through the IEP process. When it comes to one’s child, most parents are willing to do anything for them and may be prohibited when crucial documents are drafted with such highfalutin and technical language that they cannot fully comprehend.

A parent or guardian knows their child better than anyone. They know what will allow their child to succeed. They have probably been to every doctor and therapy appointment. They have probably researched their child’s particular disability in depth. They have spent years developing strategies and learning what steps to take in order for their child to succeed, but are precluded from advocating for their child simply because of a piece of paper they cannot understand. This piece of paper has such power. It determines a child’s access to resources over the course of the school year.

One concerned parent of a child with autism noted:
They are written in legal language and terminology that most parents do
not understand. Parents tend to assume that the school automatically
knows what the children need and just sign off on the IEPs due to the
language. Additionally, if parents have questions regarding the
document, the school tends to send the message that it’s inconvenient to
take time to over things in a broken down or simplified way. Frankly,
many parents put too much trust in the education administration because
of the jargon used. And not to say that all school systems fall into the
category of doing what’s best for their bottom line, but that’s been our
experience.
-Brittney Effler

Brittney Effler is a mother to a three-year-old boy on the autism spectrum with childhood apraxia of speech about to begin pre-school. He may be on the spectrum, but he is capable of doing just about anything when given the correct resources. A parent knows best, but without being able to assess what an IEP is actually providing for a child, how can a parent advocate zealously for a child? For a child on the spectrum, every resource counts. It could mean the difference between verbal and non-verbal, socializing and making friends, or even gaining a level of independence that every child is entitled to no matter what disability they may have.

The spirit of the Endrew case cannot be achieved for as long as IEPs remain inaccessible to the majority of parents and guardians. The responsibility is on the parents and guardians to advocate for their child to ensure their child makes progress and does not plateau, but they cannot do so if they do not understand the document that states how the school system plans on achieving success for each and every child.

New Bedford Opioid Forum Keynote Speaker Emphasizes Community as an Approach to the Opioid Epidemic

On October 2, 2017, the New Bedford Whaling Museum hosted “Finding Solutions: a Community Opioid Forum.” The forum was intended to provide an opportunity for law enforcement officials, medical workers, and community members to converse about the problem of opioid addiction in Massachusetts. The keynote speaker, Mr. Michael Botticelli, is the current Executive Director of the new Grayken Center for Addiction Medicine at Boston Medical Center. As a person who struggled with addiction himself, Mr. Botticelli talked about significant challenges to recovery, and stated that the ultimate cure to the addiction crisis is community. He identified multiple factors which helped create the problem of opioid addiction, and ways that the same entities who helped create the problem can help solve it.

One of the sources of the problem which may also provide solution is healthcare workers. Mr. Botticelli described the impact of the prescription drug market on today’s opioid crisis with a stark statistic: in 2012, enough opioid-based pain medications were prescribed to provide every American with a bottle. Today, however, safe prescribing practices and use of non-addictive alternative pain management methods have significantly cut down the amount of opioid medications being prescribed. Aside from these safer prescription practices, Mr. Botticelli advocated for earlier intervention at hospitals and by healthcare providers when it becomes apparent that a patient has a drug or alcohol addiction disorder. He stated that the idea of reaching “rock bottom” before treatment can begin is part of the problem. Healthcare workers should strive to identify problems before there is an overdose to provide more effective treatment and potentially diversion from the criminal justice system. Mr. Botticelli said that a person with hypertension is not told to wait for treatment until she has a heart attack, so waiting for people with drug addiction disorders to reach their most severe state prior to treatment is hypocritical.

The failure of the criminal justice system to provide treatment options in lieu of incarceration has also exacerbated the opioid crisis, but Mr. Botticelli stated that the criminal justice system is also the most common source of referrals for the treatment of drug addiction disorders. Although the New Bedford Opioid forum focused largely on the diligent work of local law enforcement and healthcare workers, it is critical for legal minds to remember that they can make a difference too. Many of the issues faced by people with addiction disorders are the everyday issues of marginalized populations, but exacerbated by a chemical dependence. As zealous advocates, lawyers should remember that beyond preventing their clients from succumbing to eviction, criminal liability, and other legal maladies, they are also in a unique position to be able to determine whether their client has a drug or alcohol problem. Zealous advocacy is not merely solving a client’s discrete legal problem, but helping the client find solutions to remain out of trouble.

In sum, Mr. Botticelli is one hundred percent on point in emphasizing community. Drug addiction disorders have impacted New England for long enough. Every person in nearly every profession can find a way to make a positive change, even if it’s only in their attitude.

UMass Law Review Hosts an Immigration Law Symposium

Immigration has become a divisive issue for our nation. At the end of 2016, NBC news identified immigration as one of eight issues that would shape politics in 2016. After the election of President Donald J. Trump, immigration became a hotly debated issue as the President threatened to withhold federal funding from so-called sanctuary cities. The problem is that sanctuary city is not defined in law. Nonetheless, it prompted hundreds of cities and towns, including several in Massachusetts and Rhode Island to offer “sanctuary” for immigrants who came to this country illegally. These cities vowed not to prosecute otherwise law abiding immigrants. Meanwhile, President Trump moved quickly once in office to institute a travel ban barring refugees from seven Muslim countries for 120 days and suspending travel from these countries for 90 days. The order was effective against foreign visitors and permanent U.S. residents. A day later, a federal judge in New York issued an emergency stay of the order allowing for the release of travelers with visas at U.S. airports and stopping deportations of travelers. Following this, several states took legal action against the President claiming that the ban will cause “irreparable harm.” On February 3rd, a federal judge out of Washington issued a temporary restraining order suspending the ban nationwide. On February 9th, the Ninth Circuit of Appeals heard the appeal and refused to reinstate the travel ban arguing that the government had not shown that irreparable injury would be caused by the stay.

The back and forth continued in March as the President signed a new executive order, but it met a similar fate at Federal District Courts in Hawaii and Maryland. Then a few weeks later, a U.S. Court of Appeals judge ruled that the order was justified. The order is currently in limbo right now but it is very possible that it may go before the Supreme Court.

As a result, the University of Massachusetts Law Review has decided to take on this topic for our annual law school symposium. The event entitled, The Immigration Symposium: Beyond the Wall, is scheduled for April 6th from 9 a.m. to 2 p.m. The event will not only discuss the legal intricacies of this complex topic but it will also mark the American Bar Association’s Law Day which focuses on the 14th Amendment this year. It will also mark a milestone for the University: the 15th anniversary of the Immigration Law Clinic, which provides free legal assistance to individuals with immigration matters.

The event will start with a light breakfast at 8 a.m. This will be followed by an alumni panel from 9 a.m. to 10 a.m. featuring local immigration attorneys who graduated from the University of Massachusetts School of Law and participated in the Immigration Clinic. At 10 a.m. the discussion will continue as we zero in on the topic of sanctuary cities featuring Sheriff Hodgson, Mayor Curtatone of Somerville, Councilwoman Emily Norton of Newton, and Sarand Sekhavat, the Federal Policy Director for Massachusetts Immigration and Refugee Advocacy Coalition. This has been a hotly debated issue in Massachusetts and has made headlines in both the Boston Globe and the New York Times. Mayor Curtatone, most notably, being one of the first mayors to announce that his city would be a sacntuary city and forego federal funding if it came down to it. Meanwhile, law enforcement officials like Sheriff Hodgson of Dartmouth, Massachusetts shot back saying we should prosecute illegal immigrants to the full extent of the law. The panel promises to be lively as well as informative and balanced.

The third panel of the day (11:30-12:30) will feature three subject matter experts on the Middle East and refugees discussing issues surrounding the travel ban. We will talk to immigration attorney Subhan Tariq about practicing in the field as a Muslim attorney. He will also weigh in on the legal implications of the travel ban. We will also check in with Dr. Joseph Roberts of Roger Williams University. Dr. Roberts is a Middle Eastern expert who will discuss the implications of the travel ban in an international context. Lastly, a representative from the Massachusetts Bar Association will join us to discuss local efforts to overturn and challenge the travel ban.

The keynote speaker at the event will be former Congressman Barney Frank. Congressman Frank will weigh in on both the President’s policy on sanctuary cities and his recent executive orders concerning immigration. He will discuss the future of our nation and immigration as well as some of the circumstances leading up to President Trump’s immigration crackdown. Congressman Frank will speak at 12:45 p.m. Then the event will conclude with lunch and refreshments.

Autonomous Liability

Hypothetical: A Google Self-Driving Car is stationary at a traffic signal in Amherst, Massachusetts. At the same time, a Tesla Model S, utilizing its “Autopilot” feature, is traveling on the same road at a constant velocity of 65 miles per hour, the posted speed limit. If the Tesla fails to stop and crashes into the Google Self-Driving Car, who is liable?

The above hypothetical presents quite a few legal questions. First, Massachusetts laws do not currently allow the statewide operation of autonomous vehicles on state roadways. A bill sponsored by Brian A. Joyce (Senate Bill No. 1867) to legalize the operation of autonomous vehicles in Massachusetts is pending before the Senate Committee on Transportation. However, the Massachusetts Department of Transportation appears hesitant to embrace the growing demand for autonomous vehicles, especially following the death of Joshua Brown, who was killed in May 2016 when his Autonomous Tesla crashed into a tractor-trailer at 65 miles per hour without applying the brakes. On the other hand, while MassDOT cautiously waits for more information about autonomous vehicles, the Massachusetts highway safety director, Jeff Larason, commented that the Tesla fatality, although a “‘horrible tragedy,’ should not undermine the good that accident-avoidance technology might achieve.”

The second issue is the principle question of liability; simply, who is liable in the event of an autonomous vehicle collision? Liability would largely depend on whether human error played a role in the collision. Considering the most recent autonomous vehicle accident—which occurred on September 30, 2016 and involved a Tesla and a German bus—almost every car crash involving an autonomous car was due largely to human error. In fact, according to the National Highway Traffic Safety Administration, human error accounts for approximately 94% of all autonomous car accidents. Thus, without more facts about the actions of the operators (or lack thereof) in the above-scenario, it is difficult to determine liability.

If human error accounts for almost all autonomous car accidents, will there be a decline in motor vehicle accidents as autonomous and accident-avoidance technologies evolve and become more commonplace? Interestingly, some legal experts predict that as a result of these technologies, we will see a large decline in traffic accidents and correspondingly, in tort claims. Some view that the purported decline in traffic accidents will mean that lawyers whose practices largely depend on auto accident claims may need to find another field of practice.

Sources:

Alexi Davies, Obviously Drivers Are Already Abusing Tesla’s Autopilot, Wired, Oct. 22, 2015, https://www.wired.com/2015/10/obviously-drivers-are-already-abusing-teslas-autopilot/.

Bill Vlasic & Neal E. Boudette, As U.S. Investigates Fatal Tesla Crash, Company Defends Autopilot System, N.Y. Times, Jul. 12, 2016, http://www.nytimes.com/2016/07/13/business/tesla-autopilot-fatal-crash-investigation.html?_r=0.

Hiawatha Bray, Without legislation, robotic cars can’t be tested on Mass. Roads, Boston Globe, Jul. 4, 2016, https://www.bostonglobe.com/business/2016/07/03/without-legislation-robotic-cars-can-tested-mass-roads/NlGzpVSfIWbxHEOUcOPNiM/story.html.

Pat Murphy, Self-driving cars to usher in new age for PI lawyer, R.I. Lawyers Weekly, Sep. 29, 2016, http://masslawyersweekly.com/2016/09/29/self-driving-cars-to-usher-in-new-age-for-pi-lawyers/.

Reuters, Tesla Autopilot not to blame for bus accident in Germany, company says, Guardian, Sep. 30, 2016, https://www.theguardian.com/technology/2016/sep/30/tesla-autopilot-bus-crash-germany.

Recent SJC Case Will Aid Immigrant Children Between the Ages of 18 and 21 in Massachusetts

Since 2014, the United States has seen over 160,000 unaccompanied immigrant children reach its borders. (See Improving the Protection and Fair Treatment of Unaccompanied Children September 2016, available at: https://supportkind.org/wp-content/uploads/2016/09/KIND-Protection-and-Fair-Treatment-Report_September-2016-FINAL.pdf.). These children face multiple challenges and horrors that force them to flee their home countries. According to the legal representation organization Kids In Need of Defense (KIND), there is a particularly large flow of unaccompanied children from Central America. From gang and drug related violence, to sexual assault and rape, children from this region often make their way to the U.S. hoping to just find a place to feel safe. Countries such as El Salvador, Honduras, and Guatemala are among some of the most dangerous and violence-ridden countries in the world.

So, what happens to such a child once they reach our borders? Well, Congress enacted the Immigration and Nationality Act (INA) and included a provision that created a path for citizenship for immigrant children. The journey begins with obtaining Special Immigrant Juvenile Status (SIJS). To acquire SIJS, the child must first be found by a state juvenile court to be: (1) a dependent on the juvenile court; (2) her reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) it is not in her best interests to return to her country of origin. Once these findings are made, an application for SIJS may be submitted to the United States Citizenship and Immigration Services (USCIS) agency. An application for SIJS must be submitted before the child’s twenty-first (21) birthday.

It is at this juncture that some immigrant children face a huge issue in most states, including Massachusetts. Children seeking SIJS must first obtain an order from the Massachusetts Probate and Family Court. However, the Probate and Family Court usually only has jurisdiction over children under the age of eighteen (18), while the INA provides relief for children under the age of twenty-one (21).

What about children falling in between the ages of eighteen (18) and twenty-one (21)? Previously, these children would have to find another way of acquiring lawful admission into the U.S. or face deportation. However, in March 2016, the Supreme Judicial Court (SJC) provided an equitable remedy so that children falling within this age gap have a fair chance at citizenship. In the case Recinos v. Escobar, the SJC found that the Probate and Family Court does have broad equity powers that it may invoke when encountering an immigrant child between the ages of eighteen (18) and twenty-one (21). Recinos v. Escobar, 473 Mass. 734, 740. (2016). In other words, it gives the Probate and Family Court jurisdiction over children older than eighteen (18) but younger than twenty-one (21) for the purpose of making the required findings needed to apply for SIJS. This case now sets the precedent in Massachusetts that children who are in this this age gap can now attain SIJS. Given the large number of unaccompanied immigrant children still fleeing to the U.S., this important decision will now enable a previously over-looked group of children in Massachusetts the opportunity to feel secure and safe in the U.S.