Jacquelyn E. Fradette

Bio: Jacquelyn E. Fradette is an academic researcher from University of Notre Dame. The author has contributed to research in topics: The Internet & Freedom of contract. The author has an hindex of 1, co-authored 1 publications receiving 3 citations.

Online Terms of Service: A Shield for First Amendment Scrutiny of Government Action

Abstract: INTRODUCTION In Red Lion Broadcasting Co. v. FCC, (1) the Supreme Court of the United States declared that the purpose of the First Amendment of the United States Constitution is "to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail." (2) Broadly speaking, courts have understood that they were preserving this marketplace of ideas primarily in the face of government interference. (3) The First Amendment states that "Congress shall make no law ... abridging the freedom of speech." (4) That language invokes the colloquial image of the quintessential speaker in America: a person standing on a soap box in the town square speaking her mind into a megaphone with Congress restrained by the text of the First Amendment and unable to interfere. Partnered with this image is the idea of common, public, and shared spaces where people are concentrated and, thus, become the audience for the paradigmatic speaker. Advances in technology have shaped the way that citizens "speak," both to the polity at large and to one another individually. As each development in media technology arises, it brings with it many benefits, such as expanding the scope of one's audience and the ability to target a narrow, yet specific, audience more precisely. The move to new media platforms for speech--Twitter, (5) Facebook, (6) BlogSpot, (7) YouTube, (8) and others--has changed the legal landscape that protects such speech because speakers are largely no longer operating in public or in publicly owned spaces. Instead, by using Internet forums for their expression, modern speakers are communicating in a forum that is governed by contract. (9) Internet users, however, by and large still have the impression that they have the same constitutional protections when speaking on the Internet that they do in the proverbial town square. (10) In some circumstances that intuition is correct. The government cannot pass legislation limiting speech on the Internet, without such legislation being subject to constitutional scrutiny. (11) In addition, government actors cannot escape scrutiny for firing someone in retaliation for speech made on the Internet. (12) Many of the same limitations on government action that exist in real space also exist on the Internet. (13) But those popular intuitions are incorrect in two main ways. First, many consumers and media commentators believe that when an Internet speech forum provider, like Google or Twitter, interferes with or limits their speech, the forum provider has infringed upon their First Amendment rights. (14) Second, users believe that Terms of Service agreements only affect their relationship to the Internet speech forum provider. (15) While it may be formalistically true that a contract only affects the rights of the two contracting parties, in practice these Terms of Service contracts may have wider reaching consequences. Users by and large do not contemplate that Terms of Service contracts can affect their ability to redress some types of government action against some of their speech acts online. Part I of this Note will canvas popular opinions and perceptions about First Amendment rights on the Internet using examples of public outcry over recent instances of speech limitation. It will also discuss the state action doctrine generally and how the presence of this doctrine most likely renders certain popular public constitutional intuitions about the First Amendment erroneous. Part II will provide an overview of how courts have taken an expansive and protective view of private ordering between online parties. It will discuss how courts have developed a robust freedom to contract jurisprudence in the Internet context. Because courts essentially have a presumption in favor of the enforceability of the contract so long as it meets basic formal requirements, it is difficult for users to challenge the Terms of Service between themselves and an Internet speech forum provider substantively or procedurally. …

Current index to legal periodicals

Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

The biggest lie on the web: Coming to terms with the failure to read through the lens of the First Amendment

Abstract: As lines between public and private spaces online continue to blur, contracts are moving closer to the day when government actors will be involved in all of them. When 90%+ of online users do not read the terms-of-service (ToS) agreements of social media sites, they are unaware of possible repercussions of blindly assenting to these unread contracts, including potentially relinquishing a number of their constitutional rights. Primary among these is their First Amendment right to petition the government for relief in a court of law. In most ToSs, the online user must agree to mandatory arbitration in the site owner’s venue of choice. Secondary is their sole right to their intellectual property afforded by the Constitution. Through an online survey (N = 235), this article reports data concerning respondents’ attitudes toward reading ToSs, their demographic information, and their likelihood of accepting a forum-selection term from Twitter, contrary to their potential constitutional rights. Two major ...

Countering pernicious images: memetic visual propaganda and the 2018 elections

Abstract: Russian disinformation attacks through social media increasingly involve genuine photos paired with inaccurate captions to create false news. The relative ease and devastating impact of this meme-based (memetic) method have led domestic actors to adopt these same informational warfare tactics. This is apparent in an examination of the conservative effort to demonize the migrant caravan in the month before the 2018 midterm elections. Posters used misidentified images to push xenophobic tropes that the caravan was violent, rapacious, diseased, unpatriotic, and supported by outside funding groups including wealthy Jews. This Article is the first to systematically document these propagandist threads and present a legal countermeasure based on existing intellectual property and First Amendment doctrines. Tracing the development of memetic misattribution reveals a powerful avenue for defense. Falsely captioned photographs in these memes typically originate from previously published news articles and are reused over several years. As such, a basic reverse-image search can debunk the majority of these images; a photo cannot simultaneously capture current events and predate those events by several years. Social media firms should incorporate reverse-image searches and resultant copyright information directly on their sites. This effort is imperative, as these firms have been slow to respond to this informational threat to our democracy. Moreover, an objective, measured approach is vital to avoid overregulating an important arena for speech. The novel transparency-based solution advanced in this Article achieves this balance.