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Ari Waldman
Ari Waldman

Northeastern University

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Misinformation and the Conservative as Victim

Abstract

This is an early-stage project about misinformation. While legal scholars have been active over the last 4 years identifying legal definitions of and developing legal responses to the problem of misinformation, including assessing the constitutionality of those responses under the current Supreme Court's First Amendment jurisprudence, less attention has been paid to how the law is already changing as a result of misinformation and how current legal doctrines and institutions are vulnerable to erosion because of misinformation already in the mix. This project brings together literature in sociology and social network theory about how information spreads and doctrinal standards used in judicial review of government action. Consider, for example, the seemingly frivolous litigation stemming from the former president's baseless challenges to only some of the results of the 2020 election. Each of those claims were based on things that simply weren't true. A claim that Republican vote watchers were not allowed to stand the appropriate number of feet away from vote counting was false. Statements in complaints alleging massive voter fraud were baseless, and found to be so when lawyers were asked by judges in court to detail their claims, or when the time came to file motions. That is, the basic rule against lying in court--and associated professional sanctions for doing so--appeared to erect a wall against law being made based on misinformation. But that is not always the case. Nor is this particular set of baseless claims the last one courts will face. In fact, I would like to argue that the law is deeply and structurally vulnerable to erosion by misinformation because standards and practices either insufficiently envisioned the possibility of lies or were explicitly created to achieve partisan and power gains with the support of misinformation.

About

Professor Ari Ezra Waldman, a leading authority on law, technology and society, joined Northeastern University’s faculty in 2020 as professor of law and computer science. He directs the School of Law's Center for Law, Innovation and Creativity (CLIC). Professor Waldman studies asymmetrical power relations created and entrenched by law and technology, with particular focus on privacy, online harassment, free speech and the LGBTQ community. Professor Waldman is a widely published scholar, including two books, Privacy As Trust: Information Privacy for an Information Age (Cambridge University Press, 2018) and Inside the Information Industry (Cambridge University Press, forthcoming 2021), and more than 25 articles published in leading law reviews and peer-reviewed journals, including Washington University Law Review, Cornell Law Review, Iowa Law Review, Indiana Law Journal and Law & Social Inquiry. He has also written for the popular press, publishing in The New York Times, Slate, New York Daily News and The Advocate, among others, and serves on the editorial board of Law & Social Inquiry (LSI), a peer-reviewed journal that publishes work on sociolegal issues across multiple disciplines, including anthropology, criminology, economics, history, law, philosophy, political science, sociology and social psychology. He holds a PhD in sociology from Columbia University, a JD from Harvard Law School and an AB from Harvard College.