by: Kéran Billaud
Professor Lyrissa Lidsky.
Chances are, if you’ve heard that name from someone (and those odds are pretty high at Levin), the same person will have tried convincing you to take one of her extremely energetic, intuitive and informative classes on torts, media law, internet law, and others. If you happen to be one of her former students, then you know what comes next.
Lidsky recently accepted the deanship of the University of Missouri School of Law. Yes, the UF Law community is losing one of its finest, but many are also happy to see her hard work recognized.
Before the news broke, we sat down with her to learn more about her background, research, and her take on some of today’s pressing media law issues. (Listen to her answers below. Transcription available.)
Topic 1: Background story and research focuses.
Professor Lidsky, we’d like to start by asking you some questions about your passion for media and tort law, your many roles at the college, and then reemerging debate over constitutional rights, now in the digital age (including a couple of current events).
- How did you discover your appreciation for law? Show interview answer
Well, I think like many people, you end up being a scholar because you were taught by a great scholar who inspired you in your field. And so, I had an incredible media law professor in law school. His name was David Anderson. He just retired from the University of Texas, and he was just incredibly inspirational. I also have always been fascinated by questions of authorship and the writing process. I was an English major as an undergraduate, and so it was just a natural fit focusing on you know the importance of writers and bringing us the news of the day and particularly as my eyes were opened how incredibly important it was by this incredible teacher
- How would you describe your many roles at Levin, and how do you manage all of it? Show interview answer
I am now the administrator for all of our graduate programs, which is our LLM in Comparative Law, our LLM in US Tax Law, our LLM in International Tax Law, and our LLM in Environmental Law. So, I really help administer those programs so that we can bring great students to UF and including students from around the world, and to make sure that when they are here they have a good experience as graduate students at the University of Florida law school.
- For over 20 years, you’ve zeroed in on theory around investigative journalism serving the public and a possible newsgatherer’s privilege, with journal articles like Intrusion and the Investigative Reporter in 1992, and many more all the way up until this last year. Why has this been a lasting theme of scholarly focus for you? Show interview answer
It’s hard to say why a person loves what they love. So one of the things I’m interested in is how audiences interpret any piece of text and the assumptions you make about audiences in valuing someone’s speech, including the speech of the press. And so I’ve written about how the First Amendment presumes audiences are rational and what that means for our protection of speech. I’ve also written about how to properly interpret whether something is defamatory based on how you respond to audiences and how they respond to speech. So I guess again, I started out with a focus on authorship, textual interpretation, and the interaction between authors and readers surrounding text. And that just bled over into various interests. I’m also really interested – you mentioned my first article that I published as a student – it was called “Intrusion and the Investigative Reporter.” It was about intrusion and investigations, and so I’ve always had an interest in new and emerging technologies, how journalists use those to tell stories differently, what kinds of legal protections come for using new technologies, and how new technologies may pose different kinds of threats to other values. You know I teach Internet Law as well as Media Law, and that’s not even a subject that existed when I was in law school. You know I graduated in 1993, and it was just, just, just coming on the scene as a possible area of study.
- Clearly, technology has a lot to do with your research as you explore the past, present and future of our evolving legal system. How would you briefly describe technology as benefitting or hurting American or global society with respect to the law? Show interview answer
Well, I think technology is always mixed. I mean there are always advantages and disadvantages, and any human endeavor has pluses and minuses. I’ve written about anonymous speech. You know, anonymous speech can certainly lend itself to use for fraud and deception and criminal activity, but anonymous speech can also be used by whistleblowers and people bringing us information about our government that we need that we wouldn’t otherwise get. Or people that can explore multiple aspects of their personality in a positive way. So, I really like stepping back and looking at the pluses and minuses of technology and how we use older law and adapt it in light of our understanding of what the technology can do. I’m especially – I should say – I’m especially interested in whether people speak to each other differently now because of technology than they did twenty years ago. I think that a lot of conversations right now in social media are not like formal written conversations, but they’re really like how we speak to each other verbally. Social media have this aura of informality that encourage us to say things that previously we never would have put in writing, and that of course puts us in trouble sometimes. And that leads the law to struggle with what to do with something that is in a permanent medium, but that really has a little thought behind it that was something said verbally off the cuff. Like tweets. Libel in tweets is definitely one of my specialties now. I never could have envisioned in law school that I would be a specialist in libel in tweets.
- Do you think we have hit an apex in digital growth — in other words, will people’s rights dwindle now with the Internet? Show interview answer
Well now that you ask me to predict the future, you really want me to get in trouble, because it’s always dangerous to try to predict the future. I do think that there are trends and currents as people try to balance rights off one another and so at the beginning there was a desire to maximize free speech on the Internet, at least in the U.S. context because we didn’t want to stymy the growth of the Internet as a robust medium of expression. I think now there’s a counter trend going on saying, “Now, it’s gone too far. There’s too much transgression of the boundaries, and we need a corrective.” And so it’s hard to see how that balance is going to work out. Of course, we have a new president in office that may affect the public mood with regard to freedom of expression. Certainly, our new president is a great user of Twitter and a believer in social media. On the other hand, you know, the president himself has expressed concerns about others’ expression that he finds distasteful. You know, the expression of other people that he finds distasteful and argued that maybe it should be curbed in some respects. So, the U.S., unlike other countries put in a law in place early to protect robust speech on the Internet so that Internet service providers and websites are not responsible for what people say on their sites, and other countries – most of them – take a different approach to that issue. That’s been an absolute bulwark for protection of Internet free speech, but it’s come under a lot of criticism and it’s not clear that that statute will be in place forever. So, as the public mood turns and says, “Well, the Internet is too wild. There’s too much bad content on the Internet. We need more protections against the bad content, you know, that statute could rethought.
- Cyberbullying is another major focus in your research. Can you tell us about why that is and how important it is to keep an eye on this developing threat?Show interview answer
I wrote an article called How Not to Criminalize Cyberbullying, and perhaps you can glean from the title that I’m very concerned that our desire to eradicate cyberbullying will result in the eradication of free speech as well. So, I’ve tried to draw a careful balance to protect free expression, particularly free expression of minors in the face of calls to eliminate any speech that might be emotional hurtful to another person. It’s not at all to diminish the real harms that both can and have flowed from cyberbullying. I mean, deaths have resulted from teenagers committing suicide because of cyberbullying, but on the other hand, our desire to remedy that very serious social problem shouldn’t lead to over-criminalization of protected speech, particularly when we are taking about adolescents who don’t always understand fully the consequences of what they say. I think education is critical, and repeated education. It’s not a one time lecture. It’s day-to-day understanding that texting is as important to them as talking on the phone was to prior generations of teachers, and yet, when you were gossiping on the phone it didn’t have the potential to cause the same types of harms. The repercussions weren’t as serious for your future as the repercussions are for teens now. So, I think education, particularly education of adolescents about the limits placed by law and the limits placed by good common sense, and having their teachers and administrators protecting them from their own immaturity is vitally important
- Up until now, we’ve mostly talked about your research focus and how you see technology affecting society. Under the umbrella of Internet law, which we understand is a class you teach, jurisdiction is known to be a challenge. Can you explain to us how Internet law contributes to jurisdictional challenges across the board for other fields? Show interview answer
The Internet is a global medium of communication. And so speech, tweeted in your house in Tampa can mean that when you land in Saudi Arabia, for example, you’ll be arrested and deported from the country. So, if you criticize the Saudi government at our house in Tampa, then fly there, don’t expect entry into the country – which was a real case here, that happened to a man in Florida. So, anytime you speak on the Internet, you must be aware that speech norms are different in other other countries, and your speech has an opportunity to slip its boundaries and go where it may not be welcome. Now, most of us are protected by the fact that if we’re going to tweet about Saudi Arabia, we probably don’t plan to set foot there any time soon. And so Saudi Arabia’s jurisdiction to enforce its speech norms is limited to a certain extent by geography. But each nation is trying to figure out what to do about speech that it finds threatening coming into its borders. There’s a lot of concern in the United States about ISIS and speech recruiting ISIS members, or speech promoting ISIS coming into the U.S. and what to do about that given that it’s not originating in the U.S. and what measures can be taken against it. Whether you can get criminal jurisdiction to prosecute someone for speech that might be a threat when they are sitting outside of the U.S. The U.S. has asserted criminal jurisdiction in that. A problem for every single country is how do they enforce their norms within their borders, given that speech is coming from outside their borders. And then, must they only police speech within their borders, or can they use their norms of censorship and enforce them on other people? The equation kind of goes both ways. What happens when speech shows no respect for borders. Jurisdiction tends to go with borders, and now speech shows no respect for borders. You probably know about the problem of libel tourism where if something is published about a celebrity on the Internet and they’re wealthy, they can choose to sue, but they’re not going to sue in the United States, because the libel laws in the United States are very protective of freedom of expression. They’ll sue somewhere else. Originally, like Britain, although Britain’s cut off some of it. And now, Germany is a libel tourism destination because their laws are more favorable to celebrities than they are to free speech on those issues.
- In the front row seat of change, you must have a great perspective on the future. What would you forecast as the major legal questions we will face in the coming years? Show interview answer
Here, in the United States, I was on a panel on Trump and press freedom, because Trump’s been a very vociferous critic of the media. Now, whether being a critic translates to any legal changes or not is not at all clear at this point. He said at one point that he would open up libel laws to make it easier to sue the media for libel. On the other hand, Trump himself has been sued for libel based on his tweets already. So, opening up libel laws could cut both ways. it might allow Trump to sue more easily, but at the same time it would allow Trump to be sued more easily. So it’s not clear whether any of that negative rhetoric about the press is going to result in concrete legal change. Nonetheless, the public opinion about the job the press is doing in our democracy and whether they’re crucial actors in our democracy really is important. So, public opinion really does protect the press when they are doing the public’s job of being a watchdog on government. And if the public thinks the press is not serving them, it results in a diminishment in the scope of action that they have to do investigative reporting. I mean, for one thing, if they don’t have money, they can’t. If people aren’t subscribing and they don’t have money to go out and investigate, they can’t do their job.
Topic 2: Current Events
- Recently, you tweeted: “Does widespread acceptance of fake news undermine the First Amendment’s rational audience presumption?” while citing a journal article you wrote titled, “Nobody’s Fools: The Rational Audience as First Amendment Ideal.” Can you discuss the importance of a rational audience today, and how it applies to our nation especially with the discussion of fake news? Show interview answer
The article Nobody’s Fools is probably the epitome of what I care about in terms of first amendment theory, because in a democracy the power rests in the hands of the people. And the people have to know what the government is doing in order to vote rationally, to be able to recall their legislators when they are not doing our will, and they have to be informed and make rational decisions in order for democracy to work. That’s a theory that underlies the First Amendment. The First Amendment assumes that the American people are not gullible, that they can’t be taken in easily, that we need an open marketplace of ideas free of a lot of governmental regulation so that citizens can be exposed to all of the ideas out there, and eventually they will pick the best ones. Well, the belief in fake news – if people are constantly falling for fake news or constantly falling for propaganda, then it might cast into doubt whether we are rational enough to really govern ourselves. I think that’s a dangerous notion to think that the American people aren’t rational enough to govern themselves. It really leads, in my opinion, to bad places if that rational audience presumption is fundamentally undermined. And so, I think research on fake news, how to counteract fake news, how to help the American people really exercise their rational faculties to make wise choices about our government is vitally important today.
- In October last year, you visited the University of North Carolina to discuss Justice Scalia, hate speech and the First Amendment. Hate speech has been on the rise this past year. Earlier this semester, we witnessed a pro-Nazi demonstration and a powerful counter-demonstration in the free speech zone of Turlington Plaza. In the mean time, people were confused as to whether there was a difference between hate speech and free speech. Can you share with us what you discussed at the conference? Show interview answer
I worked on an op-ed piece in order to clear up that question for people who don’t know that answer. The U.S. Supreme Court has said that hate speech (offensive, deeply disturbing, anti-semitic, racist speech) standing alone is protected by the First Amendment. OK, so, it sounds like a contradiction in terms, but, peaceful hateful speech is in fact protected. Now, it loses that protection if the speaker, of course, makes a threat or commits an assault or violates somebody else’s personal security or safety. But in a democracy, we have to put up with speech we hate. You know, actually, we don’t have to put up with it. We have a remedy. The First Amendment assumes that we as engaged citizens will speak out and will drown out the bad speech, the evil speech, in the marketplace of ideas. And the man coming on the campus with the swastika has enabled a group of engaged citizens to come forward and say, “Those are not our values. We are not anti-semites. What you’re saying is deeply hurtful. You are a deluded individual who does not match our community’s values.” And so that is exactly the process that the First Amendment envisions happening.