L.A. police must release automated license plate reader data, though in anonymized form

Commuters on the westbound 91 Freeway in San Diego. (Glenn Koenig /Los Angeles Times, file)

An interesting decision today from the California Supreme Court (ACLU of So. Cal. v. Superior Court) related to public records requests for automated license plate reader (ALPR) data.

First, the facts:

This list of license plate numbers comprises the investigative “hot list.” When a hot list match occurs, the system alerts either officers in a patrol car or a central dispatch unit, depending on whether the ALPR unit that detects a match is mounted on a patrol car or a fixed structure. Most license plate numbers that ALPR units capture do not match the hot list and have no perceived connection to any crimes, AMBER alerts, or outstanding warrants.
The ALPR technology records each scanned license plate number, together with the date, time, and location of the scan, and stores the data on confidential computer networks. The Los Angeles Police Department (LAPD) estimates that it records data from 1.2 million cars per week. It retains license plate scan data for five years. The Los Angeles Sheriff’s Department (LASD) estimates that it records between 1.7 and 1.8 million license plates per week. It retains scan data for two years….

In 2012, the ACLU and the Electronic Frontier Foundation demanded — citing the California Public Records Act — that the LAPD and the LASD turn over “records related to those agencies’ use of ALPR technology, including ‘all ALPR data collected or generated’ during a one-week period in August 2012, consisting of, ‘at a minimum, the license plate number, date, time, and location information of each license plate recorded.’” (The ACLU and EFF didn’t ask for the “hot list.”) The law enforcement agencies refused to turn over the records. The agencies did agree to produce “any policies, guidelines, training manuals and/or instructions on the use of ALPR technology and the use and retention of ALPR data, including records on where the data is stored, how long it is stored, who has access to the data, and how long they access the data,” which the ACLU and the EFF also requested.

The California Public Records Act is written broadly, and a special provision of the California Constitution instructs courts to read it broadly. But it does have two potentially relevant exceptions, for (1) records of police investigations, and (2) for records as to which “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”

The court held that the first exception doesn’t apply, “because the scans are not conducted as part of a targeted inquiry into any particular crime or crimes.” But the second, catchall exception, did preclude the disclosure of the data:

[D]isclosing unaltered plate scan data to the public threatens individuals’ privacy. ALPR data showing where a person was at a certain time could potentially reveal where that person lives, works, or frequently visits. ALPR data could also be used to identify people whom the police frequently encounter, such as witnesses or suspects under investigation …. “Members of the public would be justifiably concerned about LAPD or LASD releasing information regarding the specific locations of their vehicles on specific dates and times to anyone.”

Although we acknowledge that revealing raw ALPR data would be helpful in determining the extent to which ALPR technology threatens privacy, the act of revealing the data would itself jeopardize the privacy of everyone associated with a scanned plate. Given that real parties each conduct more than one million scans per week, this threat to privacy is significant.

Nonetheless, the court held, the police might have to turn over the data in anonymized form, unless they could show that this would substantially interfere with law enforcement; and the court remanded to the trial court to gather more facts on whether there would be such interference:

The trial court’s concerns about interference with law enforcement were multifaceted. The court initially concluded that even if ALPR data were anonymized before release, “[a] criminal could still use [that] data to follow law enforcement patrol patterns and still could locate a particular randomized plate at a particular location on specific days and times.”

The trial court appears to have placed significant weight on the possibility that a criminal could use ALPR data to identify law enforcement patrol patterns. The court did so based on the declaration of LAPD Sergeant Daniel Gomez. In pertinent part, Sergeant Gomez claimed that an individual requesting ALPR data “could use the data to try and identify patterns of a particular vehicle.” (Italics added.) However, Sergeant Gomez also seemed to cast doubt on the likelihood that an individual could do so successfully, explaining that “[u]nlike law enforcement that uses additional departmental resources to validate captured [A]LPR information, a private person would be basing their assumptions solely on the data created by the [A]LPR system ….” Nevertheless, we will assume, as the trial court found, that a person could at least roughly infer patrol patterns from a week’s worth of plate scan data.

The problem with this aspect of the trial court’s analysis is that, even assuming patrol patterns can be inferred from ALPR data, there is little reason to believe that this possibility points meaningfully toward “a clear overbalance on the side of confidentiality” with respect to all the records sought. For one thing, fixed ALPR scanners are just that — fixed — so concerns about patrol patterns are inapplicable to the data they collect.

For another, the record does not appear to indicate that knowledge of where law enforcement officers were during a particular week is a reliable guide to where they will be at some precise moment in the future. The trial court did not find, for example, that real parties conduct law enforcement in the same way that they might operate a bus service — moving from point to point at particular times on particular days, never deviating to attend to other business or emergencies. We are not aware of substantial evidence that would have supported such a finding. Likewise, the court did not determine how often any such routes change, nor whether the addition of new mobile scanners would make it challenging to infer that the absence of a patrol route in the past meant the absence of a patrol route in the future….

[A] court applying section 6255(a) cannot allow “[v]ague safety concerns” to foreclose the public’s right of access…. The trial court appears to have placed significant weight on speculative concerns about possible disclosure of mobile ALPR patrol patterns, without record evidence to support its conclusions. The court erred in doing so.

Notwithstanding our disagreement with the trial court’s reasoning, we do not have a sufficient factual record to determine whether section 6255(a)’s catchall exemption applies. We therefore will remand for further proceedings. On remand, the trial court should conduct a new balancing analysis — one that includes consideration of the feasibility of, and interests implicated by, methods of anonymization petitioners have suggested. The trial court is free to explore other methods of anonymization and redaction as well.

Petitioners have described two anonymization procedures. The first is [a] substitution method …: replacing actual license plate numbers with fictional numbers. Presumably, each plate would be assigned its own unique (fictional) number, because assigning a random number to each scan, even if multiple scans concern the same plate, would be no more informative than simply removing the plate numbers altogether. In exploring this possibility, the court should evaluate the risk that a plate number could be inferred from a fictional number. For example, if plate number “1111111” were repeatedly scanned in front of an office building during the day time, and an apartment building at night, it might be possible to infer the true owner of plate “1111111” and to track their other movements. A second method would call for disclosure of two sets of ALPR data: one that discloses the number of times that each license plate has been scanned, and another that contains only the time, date, and location of the scans.

With respect to the concern that patrol patterns might be discerned from the anonymized data, petitioners suggest different ways to redact the exact date and time of the scans, so that disclosed records would show a “heat map” of where scans were taken during the week of data petitioners seek, without revealing as much information about the mobile units that collected the scans or the license plates that were subject to them. We note, however, as discussed above, that the current record provides little, if any, support for the concern that the data would enable private individuals to discern patrol patterns. Without such information, it is difficult to see what public interest in nondisclosure could clearly outweigh the public interest in disclosure of this redacted information, but we leave the issue for the trial court to resolve.

The anonymization and redaction methods we discuss may be more feasible than the trial court appeared to believe. Petitioners contend that, even using real parties’ information system, it takes just “two computer clicks to export license plate data onto a spreadsheet or other type of document, which the parties can then modify.” Accordingly, the trial court’s analysis should go beyond whether a method of removing exempt information is “a native function” of “[t]he system utilized by the LAPD.” While real parties may not have designed their system to facilitate CPRA disclosure as a “native function,” randomizing license plate numbers or deleting columns from a spreadsheet, for example, would seem to impose little burden.

We leave the precise balance between effective anonymization and redaction and burden to the trial court on remand….

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/31/l-a-police-must-release-automated-license-plate-reader-data-though-in-anonymized-form/

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Required guns on planes, Soviet shotguns in space

A stream in Girdwood, Alaska, just outside Anchorage, in 2014. (Whitney Shefte/The Washington Post)

From Alaska Stats. 2.35.110, as it existed from 1949 to 2001:

Except as hereinafter provided, no airman shall make a flight with any aircraft within the Territory unless emergency equipment is carried as hereinafter set forth:
The minimum equipment to be carried during the summer months is as follows:
Food for each occupant sufficient to sustain life for two weeks.
One axe or hatchet.
One first aid kit.
One pistol, revolver, shotgun or rifle, and ammunition for same.
One small gill net, and an assortment of tackle such as hooks, flies, lines, sinkers etc.
One Knife.
Two small boxes of matches.
One mosquito headnet for each occupant.
Two small signalling devices such as colored smoke bombs, railroad fusees, or Very pistol shells, in sealed metal containers.
In addition to the above, the following must be carried as minimum equipment from October 15 to April 1 of each year:
One pair snowshoes.
One sleeping bag.
One wool blanket for each occupant over four.
Provided, however, that operators of multi-engine aircraft licensed to carry more than fifteen passengers need carry only the food, mosquito nets and signalling equipment at all times other than the period from October 15 to April 1 of each year, when two sleeping bags, and one blanket for every two passengers shall also be carried.

The current version updates things a bit, among other things removing the gun requirement and the gill net requirement, allowing a “fire starter” instead of the matches, allowing “equivalent[s]” to the wool blankets, and requiring only one week’s worth of food rather than two weeks’ worth.

Likewise, James Simpson (Medium) wrote in 2015 that “Soviet cosmonauts carried a shotgun into space”:

Having a gun inside a thin-walled spacecraft filled with oxygen sounds crazy, but the Soviets had their reasons. Much of Russia is desolate wilderness. A single mishap during descent could strand cosmonauts in the middle of nowhere.

In March 1965, cosmonaut Alexey Leonov landed a mechanically-faulty Voskhod space capsule in the snowy forests of the western Urals … 600 miles from his planned landing site.

For protection, Leonov had a nine-millimeter pistol. He feared the bears and wolves that prowled the forest — though he never encountered any. But the fear stayed with him. Later in his career, he made sure the Soviet military provided all its cosmonauts with a survival weapon.

Thanks to Joseph Horton for the pointer on the Soviet shotgun story.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/31/required-guns-on-planes-soviet-shotguns-in-space/

Henry Manne, George Mason’s law school and ‘Democracy in Chains’: A response to Farrell and Teles

I had resolved not to blog about Nancy MacLean’s disaster-of-a-book “Democracy in Chains” again, because the book truly doesn’t deserve the publicity, but I wanted to correct a record in this post, and will be posting an important guest post on a related topic soon.

I think the most devastating review of “Democracy in Chains” is the one in Reason magazine by Brian Doherty, author of a great, and, importantly, accurate book on the history of American libertarianism. Nevertheless, because many liberal observers are unwilling to credit reviews from what some are calling the “libertarian team,” it’s important that some liberal scholars have spoken up as well. Most recently, Henry Farrell and Steven Teles published a strong essay on “Democracy in Chains” in the latest Boston Review.

Farrell and Teles get to the essence of the issue, that MacLean makes extraordinary claims for which she presents no evidence. They note, “while we have political commitments, we are scholars. That means that our core priority is to get the facts right, even when that is politically inconvenient.” (This is particularly welcome coming from Farrell; several years back, when I pointed out on this blog that his co-blogger had blatantly lied about me, he chimed into the comments to defend the lie.)

While overall it’s a very good essay, I wanted to take issue with the following assertion by Farrell and Teles:

For example, David Bernstein, in two posts, uses problems in MacLean’s sourcing to imply in contradistinction that Henry Manne (the dean who made George Mason University’s law school shift its focus to law and economics) was not driven by the desire to set up a conservative legal institution to counterbalance liberalism in the academy, and that the law and economics approach was an ideologically neutral program because it invited Paul Samuelson as well as Milton Friedman to its seminars. As a book that one of us has written discusses at some length, Manne had entertained the ambition of creating a truly free market legal institution long before he came to George Mason, while the addition of Samuelson to law and economics seminars was an effort to provide the perception of ideological diversity for a program whose primary mission was to undermine support for the activist state.

MacLean made several claims about Manne and George Mason in “Democracy in Chains,” which I addressed in the two posts noted by Farrell and Teles:

(1) Manne only hired white males as faculty. This is false.

(2) Manne did not conduct open searches for faculty. This is false.

(3) Manne advertised to donors in a particular brochure that the law school had a “distinct intellectual flavor,” that is, a right-wing political flavor. This is false.

(4) Finally, Manne planned for his “law school would stake out a position on the side of corporations against ‘consumerism and environmentalism,’ two causes that had grown in popularity and influence since the 1970s. His faculty would advocate the superiority of ‘unregulated corporate capitalism’ and assert, as Manne himself argued in print, that companies needed liberation from ‘the distortions created by government intervention.‘”

I responded to this last claim in several ways. First, I noted that the sources that MacLean cites don’t remotely support these claims. Second, I noted that “the law school has never, ever, attempted to force or encourage its faculty to take a particular position on any given issue or set of issues, and that includes during Manne’s rather imperious reign as dean.” Finally, I noted that MacLean cited a source that discussed Manne’s pre-George Mason tenure as chair of the Law and Economics Center, and that “the reference to LEC programs fails to support MacLean’s point, if anything it undermines it,” because Manne ensured that these programs were ideologically balanced.

Farrell and Teles apparently don’t dispute the falsity of claims 1 to 3, but they argue that “problems in MacLean’s sourcing” (a rather polite way to say that her footnotes don’t remotely support the text) allowed me to “imply” that Manne didn’t entertain the ambition of creating a “truly free market legal institution.”

For a review dedicated to showing how another author extrapolates broadly and improperly from at best marginal evidence, this is an extremely sloppy way of describing the controversy. First, MacLean didn’t simply suggest that Manne wanted to create a broadly pro-free-market legal institution. She specifically accused him of wanting to create an institution where faculty would take specific positions on particular issues, which of course is contrary to normal notions of academic freedom, is not supported by the evidence she cites and is demonstrably false. Not only has no one at George Mason ever been pressured to take a particular position on any given issue, but during Manne’s tenure as dean (and thereafter) the law school hired and offered positions to a significant number of political liberals and moderates, albeit with an interest in law and economics.

Second, I didn’t opine one way or another on exactly what Manne did in fact have in mind when he planned over many years to create a law school. I rather emphasized that MacLean made some very broad assertions, completely unsupported by her sources, and which in its specifics were false. When Farrell and Teles extrapolate from this to an “implied” position on a broader debate over the origins of George Mason’s law school that I did not in fact address, they are unfortunately engaging in the same sort of “scholarship” for which they rightly criticize MacLean. I’d like to give the authors the benefit of the doubt that this was just an honest misreading not motivated by exactly the sort of animus that they identify as motivating MacLean, but it’s kind of hard when Farrell wrote on Twitter, in his most mature, truth-seeking, academic voice, “My opinion of Bernstein is unprintable, and his efforts to suggest that GMU ASSoL (or whatever it’s called now) non-ideological is hilarious.”

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/31/henry-manne-george-masons-law-school-and-democracy-in-chains-a-response-to-farrell-and-teles/

Promoting good science without censorship

My last two posts summarized the extent to which the First Amendment should constrain the government when it seeks to censor weak scientific claims. To the extent that the government uses advertising restrictions in order to promote good science, free speech doctrine has already begun to get in the way.

This could nudge federal agencies and other lawmakers to use other means to promote research and consumer knowledge. That’s a good thing. The government could do much more than it currently does using its own powerful voice and by using other non-censorship regulations. Here are a few examples:

1. Funding and supporting more independent research.

One of the greatest drawbacks to our current system of food and drug testing is that we rely on self-interested companies to produce the bulk of research that regulators and consumers must use to make important decisions. This is so in part because randomized controlled trials — the “gold standard” for research — are very costly. The companies that are likely to profit from positive research findings are the most eager to fund it.

But for the company, the research is only worth its costs if it comes out the right way. Randomized controlled trials can be gamed, and often are. Although controlled trials are supposed to avoid the selection effects that can mar studies of observational data, they can be distorted if researchers put conditions on study participants that ensure all the research subjects are unusually healthy, and therefore unusually likely to respond well to medicines and to avoid side effects. Independent researchers would have more interest in selecting the pool of research subjects in a way that better represents the future users of the product.

It is unrealistic to expect that the National Institutes of Health and other federal research organizations will receive large enough budgets to run all clinical trials themselves. But more can be done with post-market observational data. While observational studies will always raise questions about whether there are sufficient controls to ensure that an effect is truly causal, they do have the virtue of coming from the real world and reflecting what has happened in the field. Randomized controlled trials, by contrast, reflect the population of patients who happened to come down the pipeline and are willing to consent to an experiment. Controlled trials also tend to be quite small because of their costs, and they may lack the power to detect rare but important therapies or side effects.

Compared with controlled trials, analysis of observational data is cheap. The federal government should encourage researchers to access medical data and link them to other consumer databases in order to uncover latent health benefits and risks. Instead, federal privacy and research law tends to do the opposite, discouraging data collection and erecting barriers to access.

2. Publicizing or certifying the findings of independent or well-conducted research.

The government can also use its voice to promote the research that meets its favored scientific standards. Rather than using censorship rules, the government could certify health claims that meet its evidentiary standards, and allow manufacturers to proudly mark that certification in its advertising. The government can also contribute to consumer education more actively through its websites or through public service campaigns in the mainstream media.

3. Using ex-post liability and safe harbors.

Regulators could also rely more heavily on ex-post enforcement than the modern regulatory state typically does. Strict liability and ex-post fines for products that prove to cause harm can do a lot to motivate research and caution by manufacturers. The government could also create strong incentives to engage in pre-market research using safe harbors from the fines and liability that would otherwise apply if a product turns out to be dangerous for its anticipated use.

4. Mandating disclosures about the evidence base (or lack thereof.)

The government could also make better use of rules requiring companies to provide disclaimers or other information. The compelled speech doctrine seems to be more forgiving than the free speech rules that apply to censorship, at least when compelled disclosures are used to provide relevant, purely informational content. Thus, the state could require companies that choose to make scientific or health claims in their advertising to provide the evidence supporting and contradicting each of their claims on a website or through a central clearinghouse.

Mandated disclosures have a tendency to proliferate quickly, though, and they don’t always have salutary effects. In the next post, I will address some serious limits to the ability for mandated disclosure to effectively educate consumers.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/30/promoting-good-science-without-censorship/

The ‘he can’t be trusted to fairly grade [group X] students’ argument for firing professors based on their speech

One of the comments to my post about the University of Tampa firing a professor for tweeting that the hurricane “kinda feels like [instant karma] for Texas” made an argument I’ve often heard, as to a wide range of speech that condemns various groups:

The question had been raised on his ability to grade conservative students who he showed much ire towards in the totality of his tweets. I don’t agree with the censoring, but it can be reasoned that there was a worry he wouldn’t treat conservative students fairly in his class.

I appreciate the practical argument here. Indeed, if all you cared about was a professor who was maximally objective in grading students, and who would be perceived that way by students, you might want to hire professors who are as moderate as possible (temperamentally and politically) and fire any who say things that might convey hostility to any group — religious, political, racial or anything else.

But the problem is precisely that the quoted argument, if accepted, would push professors into silence on a wide range of topics. Certainly those would include any statements that may be perceived as conveying hostility to a racial group (and people would make that argument not just about overtly racist statements, but also about sharp criticisms of illegal immigration, of race-based affirmative action, of the Black Lives Matter movement, and so on).

They would also include any statements that condemn a religion, or religion generally, or irreligiousness generally. After all, if a professor argues that Islam is a force for ill in the world — or the same about Catholicism or Mormonism or what have you — that could make some people “worry he wouldn’t treat [Muslim/Catholic/Mormon] students fairly in his class.” And that’s true even if the argument is framed as calmly and rationally as possible. Indeed, if the professor just thoughtfully lays out the case for why Scientology is a scam, or Catholicism is supposedly oppressive, or all religion is irrational, a student who has publicly identified as Scientologist or Catholic or religious may well worry that this would translate into unfair treatment. (Wouldn’t it just be human nature for a person who has publicly condemned belief system X as irrational to think worse of people who believe in X, especially in evaluations where rationality is valued?)

But of course this isn’t limited to race, religion, sexual orientation, sex and the like, as the comment I quoted suggests — it would also apply to any political belief system. In this case, the argument is made that the person wouldn’t treat conservative students fairly. But students of all political stripes deserve fair treatment. (In public universities, discriminating against students simply because of their political beliefs, rather than class performance, would violate the First Amendment; in private universities, such as the University of Tampa, it would violate norms of academic ethics and may violate explicit university policies.)

If a professor harshly condemns Communism in a tweet or a blog post or a scholarly article or book, students might worry that he wouldn’t treat them fairly if he sees them wearing Che shirts or hears that they belong to pro-Communist groups. Likewise for Socialism, or environmentalism, or libertarianism, or any other belief system.

And, again, this wouldn’t be so just when the professor posts an offhand, mean-spirited slogan. A book that is the work of years of careful thought and argument, and that is sharply critical of some political beliefs could have precisely the same effect on students (and other observers) who are worried about the professor’s unfairly treating students who adhere to those beliefs.

So if professors can be fired because their posts show hostility to particular groups (political groups, religious groups, or otherwise), then we should candidly disavow any claims of academic freedom on the part of universities: Universities should acknowledge, to prospective teachers, to students, to donors, and to legislators that a vast range of opinions can lead to firing, and that therefore those opinions will be largely lost to debate at the university — and to public debate by university professors. Maybe that’s the university we want; but we need to decide whether we want it, and, if we don’t want it, we should reject the argument that professors should be fired for their speech on the theory that the speech shows that they “can’t be trusted to fairly grade” some group of students.

(I should note that, if one really cares about fair grading, one should at least institute anonymous grading, which I believe most law schools have. That would be an incomplete solution, because it wouldn’t prevent unfair grading of class assignments, such as term papers; and it would also prevent grading based on class participation. But I think that the loss of class participation grades would cause much less harm than would a policy of professors knowing that they can be fired for speech that will lead some to worry about their grading objectivity.)

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/30/the-he-cant-be-trusted-to-fairly-grade-group-x-students-argument-for-firing-professors-based-on-their-speech/

Free speech and anti-knowledge

My last post described a risk-based approach to First Amendment protection of scientific claims and showed why this shift would constrain some of the legal rules that currently apply to commercial speech. Although a risk-based approach would give the government less latitude to regulate scientific claims made by commercial speakers, it should give the government more latitude to regulate scientific claims made in public discourse. In circumstances where junk science is not only very likely to be false, but also likely to be influential and harmful, fines or liability rules should be able to survive First Amendment scrutiny.

The most tentative section of my new article, “Snake Oil,” makes the case that some forms of “Anti-Knowledge” could be controlled through common law doctrines such as negligence without doing mischief to core free-speech values.

Let me start by defining some terms. Anti-Knowledge is a subset of factual statements. Free-speech law already has to make a distinction between factual and non-factual speech. Factual claims are falsifiable and can, at least theoretically, be compared to objective reality. Non-factual speech (like opinions, moral or political philosophies, and artistic expression) do not assert claims about the objective world and therefore are not falsifiable. Sometimes the division between fact and opinion is hard to make, but courts and lawmakers can and frequently must do this (for example, in defamation law, which applies only to false statements of fact and not to opinions, no matter how hurtful they may be).

It’s helpful to further subdivide the vast and diverse universe of factual claims into three categories: Accepted Knowledge, Anti-Knowledge and Contested Knowledge.

Accepted knowledge comprises factual claims that pass an appropriate epistemological standard for “truth.” We shouldn’t pretend that accepted knowledge is the same as truth (for reasons that Thomas Kuhn elaborated), but based on the best instruments and standards for evidence at a given time, a subset of factual claims can be specially recognized as reliable and verifiable.

Anti-Knowledge gets its definition from the Accepted Knowledge category. It contains any statement that is in direct conflict with statements contained in the “accepted knowledge” category. This leaves a large residual category that I have been calling “Contested Knowledge.”

My last post focused on advertising restrictions on Contested Knowledge. Within Contested Knowledge, First Amendment law has under-protected commercial speakers. I do not think that current law or First Amendment doctrine under-protects commercial speakers with respect to Anti-Knowledge. In fact, when it comes to Anti-Knowledge, the First Amendment has over-protected speakers — particularly speakers who engage in public discourse.

There is a popular misconception that Fox News successfully won a legal “right to lie” in a 1990s case involving reporting about dairy farms. Although this folk legal analysis is not correct, it is undeniable that Anti-Knowledge is strongly protected from government interference when a person speaks to a broad, indiscriminate audience about a matter of public concern. The 2012 Supreme Court opinion in United States v. Alvarez (which begins “Lying was his habit”) said in no uncertain terms that false statements are protected by the First Amendment as a general rule. But it also left open the possibility that lies may be regulated if they cause “legally cognizable” harm.

One would think that physical harm is the quintessential “legally cognizable harm,” yet tort cases against publishers and public speakers tend to lose on First Amendment grounds, even in instances where a speaker should know that a falsehood, if believed, is likely to cause grave physical harm or death. In the most famous case along these lines — Winter v. G.P. Putnam’s Sons — the First Amendment protected the publisher of an encyclopedia of mushrooms that assured readers a particular type of mushroom was safe to eat when in fact it was toxic. And other cases I discuss in the full draft suggest the First Amendment supplies broad immunity that protects charlatans, celebrities and other authors who make pseudoscientific statements in the press or public gatherings.

The strong First Amendment protection for factual claims in public discourse stems from an admirable commitment to epistemic modesty. As the court said in Alvarez, “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” But protection goes too far if it can’t be outweighed by the public interest in deterring negligent or reckless anti-knowledge that causes foreseeable physical harm.

What I’m suggesting here runs against the trend to expand and strengthen First Amendment protections (a trend that I’ve supported in most of my work). So consider this hypothetical to test for yourself whether liability for pseudo-science can withstand strong free-speech scrutiny: Should courts or legislators be able to create civil liability for doctors or documentary-makers who publicly provoke fear about trace amounts of mercury used in vaccinations? If the family of a child who has a severe case of measles can provide credible evidence that a book or documentary persuaded his family, or the family of a child who transmitted the disease to him, to avoid the measles vaccine out of unfounded concern that the shot could increase the risk of autism, should the First Amendment come to the speakers’ defense?

It seems to me that the social benefits from this sort of legal intervention are at least as compelling as the benefits from well-working defamation law. It is true that courts will have to determine on a case-by-case basis whether a factual claim was false (that is, whether it is anti-knowledge), whether the authors had a negligent or reckless disregard for the truth, and whether the speech actually influenced listeners. But courts must make these same sorts of factual determinations in defamation law, too.

Although defamation is often listed as one of the special categories of unprotected speech, the principled explanation for those historically unprotected categories is that they mark distinct areas where the non-speech interests outweigh the interests in free speech. Other regulations that target harmful misinformation should be able to prove that they strike an appropriate balance, too, albeit within strict scrutiny instead of outside of it.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/30/free-speech-and-anti-knowledge/