Memphis Law Winter 2019

ML MEMPHIS LAW MAGAZINE | WINTER 2019

#MEMPHISLAW

reeSpeech #banned #redacted censor #freedomofspeech #LIE lmedia #censored #media #prop neutrality #censorEDcontent # peech #fIrstamendment #banne nsorship #FakeNew #neutral #c freedomofspeech #socialmedia alk #media #censored #propaga neutrality #censorEDcontent # ILENCE #RedactED #hatespeech fIrstamendment #censorship #s peech #banned #redacted #cen omofspeech #socialmedia # #TR censored #media #propaganda rality# #censorEDcontent President

M. David Rudd

Executive Vice President for University Relations Tammy Hedges

Dean

Katharine T. Schaffzin

Executive Editor Ryan Jones

Contributing Writers

Art Direction and Design

Photography

Published by

Ryan Jones Professor Steve Mulroy

Trey Clark Justin Fox Burks

University of Memphis Division for External Relations

To submit story ideas, letters to the editor, alumni updates or for other ML-related inquiries, please contact executive editor Ryan Jones at rjones1@memphis.edu.

The University of Memphis Cecil C. Humphreys School of Law 1 North Front Street Memphis, TN 38103 901.678.2421 memphis.edu/law

The University of Memphis does not discriminate against students, employees or applicants for admission or employment on the basis of race, color, religion, creed, national origin, sex, sexual orientation, gender identity/expression, disability, age, status as a protected veteran, genetic information or any other legally protected class with respect to all employment, programs and activities sponsored by the University of Memphis. The following position has been designated to handle inquiries regarding non-discrimination and anti-harassment policies: Director for Institutional Equity/Title VI Coordinator, oie@memphis.edu, 156 Administration Building, 901.678.2713. The University of Memphis policy on nondiscrimination can be found at https://memphis.policytech.com/dotNet/documents/?docid=430. UOM501-FY1920 6M2C Hot Graphics

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Contents

MEMPHIS LAW MAGAZINE

WINTER 2019

Dean’s Letter

14 From Fake News to Free Speech: 24 A Legal Legacy — John

News + Events

By Ryan Jones

Respect Your Elders

By Ryan Jones

A look at one of our innovative and educational legal clinics. The Elder Law Clinic, one of the law school's longest-running legal clinics, allows our student-attorneys to assist an often overlooked segment of our community — the elderly.

Law & Family

By Ryan Jones

Demarcus Davis and his daughter Bethany Davis are sharing a unique experience. The father-daughter duo are enrolled in law school at the same time, working toward their own respective dreams. One seeks to build upon a successful 20-year career and the other is beginning to find her own path to success, but both agree that sharing this experience together makes the journey more memorable and slightly less daunting.

secret nsor RUTH

Social Media & Censorship

Bobango (JD ’83) and Mary Lauren Bobango (JD ’19)

Should social media companies have a right to silence and ban users that share racist or dangerous views?

What about those that proliferate fake news? Are they today’s “public squares” and governors of news, or are they simply platforms under the protection of the First Amendment and long-standing policies such as Section 230 of the CDA?

By Ryan Jones

The answers to these questions and more will have wide-ranging and very significant implications for the future of freedom of expression across the globe. Potential regulatory approaches and the ongoing debate about how the First Amendment applies to this matter could have ripple effects across various levels of our own country and economy.

30 Alumni Notes 34 Faculty Accomplishments 36 Vetting the Vote

It could even alter the way our society receives, shares and processes news and information.

One is a long-standing legal pillar in Memphis and the Mid-South. One is a recent graduate who embraced her family's legal heritage and is starting on her own unique path.

The story of the father-daughter duo of John and Mary Lauren Bobango shows that all roads lead back to Memphis, family and the law.

by Steve Mulroy

Professor Mulroy, author of the recently published book “Rethinking US Election Law: Unskewing the System,” goes into detail about our election system and the solution presented by proportional representation and Ranked Choice Voting.

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Dean's Letter

L

aw school is a journey. That’s the most succinct and accurate way I can think of to describe this unique life experience every attorney has gone through. And I think you can really look at it as a journey with four important overarching parts: admission, life during law school, the bar exam and finding a job. We explore some of these aspects before and after law school officially starts or ends, but they are all undeniably central parts of this journey; each phase is contingent on successful matriculation through the preceding one.

At the moment, I’m reminded of this journey because we’re still fresh with excitement about our newest bar exam results from the July 2019 exam. Our first-time Tennessee bar-takers passed at a rate of 81.33% — higher than the state average and a promising increase of nearly 13% from our down year in 2018. We have much to celebrate about this achievement, but there is still work to be done and room to improve!

It’s a tremendous team effort from our students, faculty and staff with a particular note of congratulations to professor DeShun Harris, our director of bar preparation, for all of her hard work and expertise applied over the last year. The increased investment that the law school has put into our bar preparation programming and the innovative techniques applied by professor Harris are clearly starting to pay dividends.

I think it is also important to note that we have achieved this important first step without shrinking our class size to improve our numbers or limiting access of traditionally underserved populations to legal education. We have achieved this with hard work, deep analysis and reflection, increased investment in the right tools and a willingness to try new things. We will continue in this regard with what I am confident will be even more impressive results going forward!

On that note, I want to highlight a couple of things regarding the incoming Class of 2022 that started their journey with us this fall. In what is a glimpse of what the future holds for us, this class consists of 132 students, which equals the largest incoming class the law school has seen since 2011. Additionally, a bright future is evident in the

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diversity of the class itself. This class touts a makeup of 32% ethnic diversity, making it one of the most diverse classes we’ve ever enrolled.

It is also an example of gender equity, with a 50/50 breakdown of men and women, coming on the heels of a historic class last year in which we enrolled a majority female class for the first time ever.

And as a bookend to this journey, I’m proud to tell you that our most recent employment numbers continue to get stronger and stronger, with 87% of our 2018 graduating class having found employment within 10 months of graduation. This continues a trend we’ve been building upon in recent years. I think it is a testament to the recovering strength of our market, as well as an example of the preparedness of our students.

But I also want to address the fact that amongst the excitement, we cannot forget about our students who were unsuccessful on the bar exam. These students are still a part of our Memphis Law family, and are still on their law school journey, striving to move on to the next phase. They have devoted years of their lives to Memphis Law and worked extremely hard to get to this point. It is our responsibility to help these alumni and provide them with the tools needed to succeed on future attempts.

The law school experience is a journey we can all relate to and I’m happy to share these details with you about our students and graduates currently working down this familiar path. I hope that you’ll join me in congratulating our students, faculty and staff on their hard work and I’d like to thank you for making Memphis Law a part of your own individual legal journey.

Best,

DE A N KATH A R I N E T. SCHAFFZ I N

PROFESSOR DANIEL KIEL NAMED FEDEX PROFESSOR OF LAW Memphis Law professor Daniel Kiel has been named as the new FedEx Professor of Law. This professorship recognizes a faculty member for their distinguished teaching and legal scholarship, as well as their dedicated public and professional service.

News + Events NPI DOCUMENTARY FEATURES MEMPHIS LAW CLINIC & STUDENTS

PROFESSOR DEMETRIA FRANK RECEIVES PILLARS OF EXCELLENCE AWARD Professor Demetria Frank was awarded the Pillars of Excellence Outstanding Professorship Award by the University of Memphis Law School Alumni Chapter at its 2019 Pillars of Excellence Awards Dinner.

Memphis Law’s nationally-recognized Neighborhood Preservation Clinic and its students were featured in a new documentary series called “In the Absence”, a nine-part documentary shot over two years in Memphis that follows our partner organization, Neighborhood Preservation Inc., and its many partners in the fight for fair, safe and affordable housing. Memphis Law students are featured in Chapter 8 of the series, in which the film explores our Neighborhood Preservation Clinic and students work with legal professionals and community members to bring problem property owners to justice in Shelby County Environmental Court.

NEIGHBORHOOD PRESERVATION CLINIC BRINGS ON NEW ATTORNEY The law school’s Neighborhood Preservation Clinic recently hired a new staff attorney. Brigid Welsh joined the nationally recognized Neighborhood Preservation Clinic in fall 2019. In this new role, she will assist in case handling and management for Neighborhood Preservation Act cases and other Shelby County Environmental Court cases filed by the clinic.

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News + Events

MEMPHIS LAW WELCOMES TWO NEW VISITING PROFESSORS The law school welcomed professors Bernard A. Burk and Anna Vescovo to the Memphis Law team in the fall semester. Burk joins us as a visiting assistant professor of law teaching Professional Responsibility, Remedies, Pretrial Litigation and Conflict of Laws. Vescovo joins us as a visiting clinical assistant professor of law teaching Legal Methods this academic year.

MEMPHIS LAW HOSTS U.S. HOUSE JUDICIARY SUBCOMMITTEE HEARING In early September, the law school hosted a United States House Judiciary Subcommittee field hearing in the historic courtroom, where the committee addressed voter suppression and restoring pre-clearance to the Voting Rights Act. Congressman Steve Cohen (JD ’73), chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, presided over the field hearing on “Discriminatory Barriers to Voting” with House Judiciary Committee Chairman Jerrold Nadler and Representative Sheila Jackson Lee participating in the field hearing.

During the two sessions of the subcommittee's deliberations, seven witnesses testified, including Memphis Law professor Steven Mulroy. The predominant subject matter was whether there was enough concrete data available to justify congressional action to restore the viability of Section 5 of the 1965 Voting Rights Act, which mandates federal preclearance of any changes in the election laws of affected states.

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BLUFF CITY LAW STARS MADE HONORARY ALUMNI Bluff City Law stars Jimmy Smits, Caitlin McGee, Jayne Atkinson, Michael Luwoye and Jerry Sloane were recently named honorary alumni of the Cecil C. Humphreys School of Law as the popular NBC legal drama concluded filming its inaugural season in Memphis.

PROFESSOR BOB BARSKY NAMED 2019 SCHOLAR-IN-RESIDENCE Memphis Law proudly welcomed our new Scholar-in-Residence Bob Barsky, a leading expert on international refugee law, in fall 2019.

Barsky was most recently a professor of Law, English, French and Jewish Studies at Vanderbilt University, and was just named the Canada Research Chair in Law, Narrative and Border Crossing in the Department of Law and Legal Studies at Carleton University, Barsky's research crosses borders between literature, law, narrative and language theory, and draws together insights from the humanities, social sciences and law.

PROFESSOR STEVE MULROY NAMED BREDESEN PROFESSOR OF LAW Memphis Law professor Steve Mulroy has been named as the inaugural Bredesen Professor of Law. This professorship recognizes a faculty member for their distinguished teaching and legal scholarship, as well as their dedicated public and professional service.

MEMPHIS LAW GETS TOP MARKS IN PRELAW MAGAZINE PreLaw Magazine recognized several programs at the Cecil C. Humphreys School of Law among the best in their respective fields.

The law school was recognized for its programs in tax law, health law and for its strong employment numbers. The magazine listed it as: • A “Top Law School for Tax Law” in the fall 2019 issue.

• A “Top Law School for Health Law”” in the 2019 Back to School issue.

ORDER IN THE COURT CAFÉ OPENS IN STUDENT LOUNGE As part of a unique partnership with the University of Memphis Kemmons Wilson School of Hospitality & Resort Management, the law school recently announced the addition of a new café in the student lounge. This new café will be staffed by students enrolled in the Kemmons Wilson School, and offers law students fresh coffee, salads, sandwiches and snacks.

MEMPHIS CHiLD PARTNERSHIP NAMED HEALTHCARE HEROES AWARD FINALIST Memphis CHiLD, the unique partnership between the University of Memphis School of Law, Le Bonheur Children’s Hospital, Memphis Area Legal Services and the University of Tennessee Health Sciences Center, was named a top finalist in the Memphis Business Journal’s 2019 Health Care Heroes Awards. The law school’s nationally recognized medical-legal partnership clinic is a part of this innovative partnership.

• Listed on the 2019 Employment Honor Roll for our strong employment numbers, specifically at law firms.

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RESPECT YOUR

ELDERS

By Ryan Jones

I

T’S ALL TOO COMMON TO HEAR A TRAGIC STORY ABOUT A SENIOR CITIZEN being scammed out of their life savings.

unemployed, she could not afford to quit. At the same time, she couldn’t stay home to take care of him, so they moved in with Byrd as soon as he was discharged. She took care of him while his wife continued to work at the casino. Unfortunately, life didn’t get any easier for the Byrd family. The arrangement worked well for a number of years until the wife was diagnosed with cancer, and eventually died in 2018. His wife was recognized by their healthcare providers as having authority to make medical decisions for her husband. With her name also being on the bank account where his Social Security check was deposited, so Byrd now needed to go to court in order to obtain the conservatorship she needed to continue to be able to take care of her son — something she had no idea how to do or the money needed to do so.

Unfortunately, we’ve also all seen the news reports of nursing home abuse or neglect. And seniors having to deal with the care of a loved one or the legal aftereffects of their death are all too common situations. No one wants to think about their elderly loved ones being taken advantage of or not having the resources they need to take care of themselves. That’s why legal clinics such as our Elder Law Clinic are so important. Everyone gets older. It’s unavoidable. But the need and ability to help this segment of our communities should never be something we avoid. Our students, as well as the faculty and staff in our Elder Law Clinic, prove that every I WAS JUST SO single day by assisting clients who otherwise might have GLAD TO FIND nowhere to go for help.

“

Fannie Byrd is 78 years old. She lives in an area of Memphis that is typically regarded as poverty-stricken, with a rate of violent crime that is one of the highest in the city. She’s also the type of person who doesn’t care about any of that and has successfully raised a family amidst all of these adverse conditions. But she reached a point recently where she needed help.

SOMEBODY WHO COULD HELP ME AND GUIDE ME THROUGH EVERYTHING.

“This was the first time I had to go through anything like this,” Byrd said.

“I was just so glad to find somebody who could help me and guide me through everything.”

In 2004, her adult son was in a serious car accident, becoming a quadriplegic as a result. At the time of his accident, her son was married and had a good job as a truck driver. His injuries left him permanently and totally paralyzed.

Unable to speak or even breathe without assistance, he needed aroundthe-clock care. His wife had a job at a casino in Tunica, and with him now

”

The Elder Law Clinic took her case on a referral from Memphis Area Legal Services and helped her through every step of the process, ultimately securing the conservatorship for her son and allowing her to successfully take care of him to this day. She couldn’t be more thankful or happy about the entire experience.

Neither of them plans on going anywhere anytime soon, thanks to the clinic.

“I just couldn’t ask for anything better,” Byrd said. “I never had a bad student with me. Every single one who helped me on my case with my son was so helpful, professional and on top of things.”

The field of Elder Law is not going anywhere either. The area is ranked among the “Top 10 Hottest Areas of Law Practice,” according to the National Jurist, and with over 10,000 Americans reaching retirement age every day, this clinic provides students with the invaluable opportunity to learn the unique set of skills required to practice in the field.

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Alexandra Chunn

cases back then involved drafting documents for clients, such as wills, powers of attorney, etc. But much of the work in those days focused on client interviewing and legal drafting.”

After a couple of years leading the Elder Law Clinic, Seely returned to his home of Jackson, Tenn., in order to set up his own elder law practice, and in stepped the faculty member most students recall as the face of the Elder Law Clinic today — Donna Harkness.

“When I was first hired in the fall of 1993, the Legal Clinic was under the direction of Professor Larry Pivnick, and had a General Sessions Civil Clinic, that was supervised by Connie Ross,” said Harkness. “I was brought on as a second supervising attorney for the General Sessions Clinic with the goal of expanding the Clinic’s capacity to handle appeals from General Sessions Court to Circuit Court.”

“I clerked for a law firm all three years of law school, but I firmly believe there is no better way to learn how to practice law than through this clinic,” said Alexandra Chunn (JD ’19).

“I learned how to work a case from inception to the finish line. I learned almost every aspect of a case from client interview and intake to actually presenting a case in front of a judge and closing out the file. When you leave the Elder Law Clinic, you are transformed, emerging as a competent student attorney, ready to handle any aspect of a case.”

As it celebrates its 25th anniversary this academic year, the Elder Law Clinic has only ever seen two professors serve as its leader. Carl Seely was the clinic’s founding instructor when the program was still situated in the offices of Memphis Area Legal Services (MALS) in the old Claridge House building downtown.

“I believe we had six students that first semester,” Seely says of the early days. “We shared a secretary with Connie Ross (the General Sessions Clinic professor) with much of the time really being spent in the MALS library. Many of the 8

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At the time, all of the clinic’s positions were grant-funded and the grant money for her position was set to run out at the end of the 1996 academic year, meaning that Harkness would need to look for another job. However, Seely’s timely relocation opened up the opportunity for her to transition into the Elder Law Clinic supervising attorney role, which she gladly accepted.

“Professor Pivnick asked if I would consider stepping into the Elder Law Clinic position, and I was delighted to do so, and have continued to be delighted ever since,” Harkness noted.

As our students can attest, elderly clients can present a number of unique circumstances, vulnerabilities and overall issues in need of attention.

These could range from issues regarding communication, diminished mental capacity, transportation issues, abuse

and more. All of these unique items demand a special combination of patience, creativity, sensitivity and foresight. It’s not your standard combination of skills, nor is it your standard client with the regular “textbook” situations.

And with more than 65 different senior citizens receiving assistance in over 125 cases handled by students in the Elder Law Clinic last year alone, the number of different cases, circumstances and challenges are abundant.

Many older clients are not comfortable in these settings. Additionally, they may have trouble communicating or presenting their full background of issues adequately. That is why it is essential for students in this clinic to learn how to create an inviting and accommodating

Arieanna Gibson, Elder Law Clinic student-attorney

Donna Harkness atmosphere, a skill necessary for any attorney providing direct client services, regardless of their age.

“I have learned that establishing trust with your client on the front end makes for a much easier attorney-client relationship on the back end,” notes recent graduate Chunn. “Learning how to translate the law to make it palatable to your clients is such a crucial skill that many attorneys never learn, but is a skill that never goes unnoticed or unappreciated by your clients.”

That practice of honing your communication skills is one that other former students noted as extremely important as well.

“Early on during my semester in the clinic, professor Harkness taught us about the importance of clear communication with the client,” said Zachary Coleman (JD ’19). “We role played with hypothetical clients and learned how to ask the right questions so that we could completely understand the client’s position and what their goals were.”

“I believe that clear, concise communication with the client is key to ensuring that your client's goals are met. Whether your client is an individual or an organization, you have to communicate clearly with the client. Once you have a clear line of communication and understand your client’s goals, you can then advocate zealously for your client, whether that occurs by preparing a will or power of attorney, helping them apply for various items or advocating on their behalf in a courtroom.”

This clinic also provides many students with their first real experiences practicing law while also giving them some unique generational perspective.

“Because our clients are 55 and over, and the average age of our students is 25, the Elder Law Clinic provides a wonderful opportunity for intergenerational interaction that is beneficial for both seniors and students,” said Harkness.

Harkness also noted that one of the unique things about this practice area and clinic is that while it is indeed one of the hottest areas to practice

nationwide, the Elder Law Clinic provides the most traditional settings of any of the clinics provided by the law school, in that it operates much the same way a small law firm practice would, with each student representing individual clients in individual case matters. That structure is important to these students as they enter into their first client meetings and experiences dealing with realworld legal matters. The holistic approach that the clinic utilizes requires the student-attorneys to consider and to counsel their clients about a number of issues relating to the client’s present and future civil legal needs, and Harkness emphasizes the importance of the role of the elder law attorney as someone who advocates for clients who may be vulnerable, but are still deserving of dignity, autonomy and quality of life.

“It’s been 15 years this year since he was hurt in his accident and we didn’t know how things were going to go at the time,” said Byrd. “But thanks to the clinic, things are good today and my son is doing fine. We just wouldn’t be where we are today without them. I’m very thankful.”

That feeling goes both ways.

“I was shocked to experience, albeit second-hand, the obstacles, predatory practices and outright swindling that many elders deal with,” said Chunn. “I became passionate about advocating for and representing them. I was not only willing, but enthused to spend any spare second I had in the clinic to assist my clients. I was encouraged by their grit, graciousness and willingness to trust a law student to help them. It was truly the single most rewarding experience of my law school tenure.”

As this area of law becomes more and more popular and the clinic continues to help those citizens in need of services more than most people realize, Harkness hopes that students continue to see the importance of the work they are doing.

“I hope that the students enjoy the interaction with live clients and recognize that as a result of these first attorney-client relationships what a privilege it is to represent someone,” she said.

“And I hope they really see what great satisfaction there is in providing high-quality representation that has the potential to change another person’s life.”

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STUDENT PROFILE

LAW & FAMILY

By Ryan Jones

T

HE BOND BETWEEN A FATHER AND HIS DAUGHTER IS A SPECIAL THING, one that many feel is unbreakable.

But most people do not have to put that to the test by attending law school together.

Demarcus Davis and his daughter Bethany Davis are sharing that unique experience. The father-daughter duo are both currently enrolled at Memphis Law, working toward their own respective dreams. One seeks to build upon a successful 20-year career in counseling and the other is beginning to find her own path to success, but both agree that sharing this experience together makes the journey more memorable and slightly less daunting.

“We didn’t plan to attend law school together,” said Demarcus.

“We each made our decisions independently. It just so happens that this was the best choice for each of us. I was just excited that she chose Memphis because it meant we could do this together.”

Demarcus was the first one to decide that Memphis Law was the right place to further his career. He is currently a part-time 2L who wanted a change in career. He has been a licensed therapist for the past 20 years and felt that he’d gone as far as he could go in the field.

“I chose law school because I’ve always been interested in the subject and I’d considered it since I was younger,” said Demarcus. He believes he’ll likely go on to work in private practice, focusing on consulting for health and counseling professionals who want to grow and expand their clinics since he has years of experience managing his own small business.

“I’ll focus on practice management, business set-up and legal counseling to begin with,” said Demarcus.

While he was thinking of a drastic career shift, his daughter Bethany (currently a 1L) was successfully forging her own way through a promising undergraduate career at Xavier University with no real thoughts of law school yet.

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BETHANY

DAVIS

Since Demarcus already had his practice in Memphis, he always wanted to stay in the city. It also allowed him to start law school a year ahead of Bethany while she finished up work at Xavier. She notes that his advice was really helpful on her journey in deciding where to go to law school. He also introduced her to Dr. Sue Ann McClellan, the law school’s assistant dean for Admissions, Scholarships & Recruitment, who soon helped her sit in a number of classes and introduced her to a number of professors, staff members and current students.

“I went to Xavier with the specific thought of going to medical school, but as I went through school, I realized that that wasn’t really the direction I wanted to go,” said Bethany.

“I talked to a lot of people there and re-evaluated what I wanted to do and what I really liked and enjoyed, so I started to figure that out around my junior year and started looking at law schools.”

Both of them recall coming to the decision to attend law school independently from each other, but they definitely started the actual journey together. As a true testament to their close relationship, Bethany and Demarcus studied for the LSAT together and even sat right next to each other while taking the test.

“I didn’t have a watch or anything at the LSAT, so he gave me his watch, and he likes to talk about that affecting how our scores turned out,” jokes Bethany.

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But getting ready for law school with your dad and attending law school with your dad are two different things. At least, one would assume so. Bethany and Demarcus still seem to be sharing this journey together quite happily. Maintaining boundaries while also discovering the ins and outs of law school together.

“We’ve always been very close because she is my first-born,” said Demarcus. “But the best thing about having her here in law school with me is that I get to see her learning the same way that I got to see her take her first steps, start kindergarten and achieve countless other milestones in her life.”

And even though they are technically in different years, the two of them still have a couple of classes together due to Demarcus attending part-time.

DEMARCUS

DAVIS

“We take Contracts and Property together, and we usually come up to the law school on Sundays and study together,” said Bethany. “Since I’ve started here, he’s always given me tips and guidance. He’ll let me know about professors’ styles and what his experiences have been.” Demarcus notes that she’s doing better than she lets on though. “I do offer her some advice, but she doesn’t need much,” he said. “She is catching on fast and doing well.”

But what about the social life aspect of law school? Have their worlds overlapped yet? What’s it like to see your dad or daughter hanging out on Beale Street?

Bethany said that so far, she’s just been too busy to really have too many situations like that pop up. She’s involved in the Health Law Society, BLSA, she’s interested in joining PALS for future public action sorts of activities and she’s a member of the Diversity & Inclusion Committee, which she’s particularly interested in working with more to help more underserved youth in Memphis. Her mother is a social worker and her father has worked in various settings with at-risk youth throughout his career, so she has been raised with that mindset toward community work.

So far, the only time Beale Street has seen them both simultaneously happened right before she started law school.

“Interesting story,” Bethany says. “Last year the school was giving out some Grizzlies tickets and my dad asked if I wanted to go with him and some friends, so I said sure. Then

some of his classmates were like ‘We’re going out to Beale after the game!’ so that was an interesting night. Going to the clubs on Beale with my dad!”

But, in case you were wondering how strong their friendship really is outside of school, when asked who stayed out later that night, Bethany replied, “Oh, we rode down there together, so we just had a good time and rode back home together too.”

Demarcus knows he’s lucky to have those sorts of experiences with Bethany. “It’s just great to get so much time with my daughter. We may not live in the same city again after she finishes law school, so right now, I’m just enjoying our time.”

It seems this father-daughter team is built to last, no matter the circumstances.

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mendment #censorship #secret r #freedomofspeech #socialme ganda #neutrality #censorEDc #hatespeech #fIrstamendment # utral #censor #freedomofspee red #propaganda #neutrality # #RedactED #hatespeech #fIrsta peech #banned #redacted #cens TH #censored #media #propagan mendment #censorship #secret r #freedomofspeech #socialme ganda #neutrality #censorEDc #hatespeech #fIrstamendment # utral #censor #freedomofspee red #propaganda #neutrality #

By Ryan Jo nes

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t News #FreeSpeech #banned re edia #TRUTH #censored #media content #Lies #secret #SILENCE #censorship #FakeNews #FreeS ech #socialmedia #instatalk #TR #censorEDcontent #secret #SIL amendment #censorship #secret sor #freedomofspeech #social nda #neutrality# #censorEDco t News #FreeSpeech #banned re edia #TRUTH #censored #media content #Lies #secret #SILENCE #censorship #FakeNews #FreeS ech #socialmedia #instatalk #TR #censorEDcontent #secret HOULD SOCIAL MEDIA COMPANIES LIKE TWITTER, FACEBOOK AND YOUTUBE BAN CONSPIRACY

THEORISTS that spew hatred toward

a plethora of innocent targets?

What about Holocaust deniers or groups that promote violence toward women and minorities? Do they have a right to silence and ban individuals who share racist or dangerous views? What about those that proliferate fake news?

The content moderation rules that these social media companies develop to govern the speech on their respective platforms will have wide-ranging and very significant implications for the future of freedom of expression across the globe. Potential regulatory approaches and the ongoing debate about how the First Amendment applies to this matter could have ripple effects across various levels of our own country and economy.

It could even alter the way our society receives, shares and processes news and information.

In the past several months, numerous social media companies have removed commentators from their platforms for violating their terms and conditions of use. President Donald Trump also recently convened a group of conservative commentators for what he called a “Presidential Social Media Summit,” where they discussed social media companies’ alleged censorship and what they viewed as violations of the First Amendment. The President even has a reported plan to draft an executive

order to address these allegations of bias and censorship at technology companies. It’s been well documented that the dissemination of fake news and disinformation via social media was an insidious and widespread problem throughout the 2016 presidential election, with the Russian government using Facebook to spread fake news stories in particular. Additionally, several recent court cases, in various district courts as well as the U.S. Supreme Court, are tackling issues focused on the First Amendment and social media companies’ censorship and free speech issues. The very idea of “the public square” is being redefined daily, in the courts and in our collective cultural consciousness.

This is clearly an important issue, both culturally and legally speaking, and the issue is by no means a partisan one.

The way social media companies regulate themselves or are regulated by the government will have far-reaching effects on our free speech, news consumption and future generations’ ability to freely communicate.

All of these developments, and more, provide the ideal opportunity to explore the number of legal issues raised by these social media companies, as well as the complex legal issues tied to actions of various state actors, who are active users on social media platforms. It also provides the opportunity to look at the legal issues surrounding “fake news” and how best to combat that from a regulatory and legal perspective, while also examining ways to help understand the role of social media in today’s news and communication systems.

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PRIVATE CENSORSHIP: SOCIAL MEDIA COMPANIES, THE FIRST AMENDMENT AND THE DEFINING CASES Can social media companies even violate the First Amendment? Many conservative-leaning critics allege that the owners and employees of these social media companies have a liberal perspective and agenda. They believe this extends to the companies’ terms and conditions of service, and that when these companies ban conservative users from their platforms they are engaging in censorship. Given that censorship is technically defined as “any act by government, private entity, or individual that suppresses speech for a host of reasons,” then yes, these companies are censoring these individuals. However, whether they are violating the First Amendment is another matter.

Under the current Supreme Court precedent, banning users from a particular social media site due to violations of the platforms community standards or terms of service does not equal a violation of the First Amendment, even if those being banned are overwhelmingly of a particular political viewpoint. The First Amendment only protects people and entities against the actions of state actors, meaning state, federal and local governments and their agents or those acting under the direction of a state actor. A social media platform that is acting of its own accord and banning users would not be seen as a state actor.

In that landmark case, the Supreme Court held that Chickasaw, Ala., a Mobile suburb owned and controlled by the Gulf Shipbuilding Corp., violated the First Amendment when it banned Jehovah’s Witnesses from distributing religious literature on a sidewalk near the post office. That decision hinged on the fact that Gulf Shipbuilding was acting in all respects like a local government, performing functions that ordinarily would be reserved to the state. It may have looked like a normal town, with sidewalks, a post office and other necessities of a normal small town, but it was really all private property of Gulf. The Court said that the town’s apparently public spaces were accessible to everyone and that there was nothing evident that distinguished it from any other town.

“A fundamental principle of the First Amendment is that all persons have

The main problem with that argument is that the Supreme Court has been steadily backing off of that precedent almost since it was decided, constantly conveying that it would only decide a case the same way again if it was presented with exactly the same set of facts and that it would not extend the rule from that case.

Recent cases have added to the misconception of this public square as well.

Packingham and the Public Square

Much of the public’s confusion around this topic is also due to its misunderstanding of the Supreme Court’s recent decision in Packingham v. North Carolina. In this 2017 case, the Court reviewed whether a state violated the First Amendment when it made it a felony for a convicted sex offender to use social media websites that permit minors to create accounts.

The Court concluded that such a law infringes the Constitution’s guarantee of freedom of speech because it restricts the access altogether to what the court described as “the modern public square.”

Now-retired U.S. Supreme Court Justice Anthony Kennedy, in particular, built upon his already established expansive and functional view of the public forum doctrine in this case. In the opinion of the Court, Kennedy struck down the state law’s broad prohibition on access to social media sites by registered sex offenders, stating that sites like Facebook and Twitter serve important free speech functions and that prohibiting registered sex offenders from utilizing these social media sites impermissibly thwarted those important free speech functions.

Kennedy focused on the important functions that the public forum doctrine serves, saying that “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then after reflection, speak and listen once more.”

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However, there is a lot of confusion around all things social media and censorship these days, despite that seemingly clear-cut language. Several cases, both old and more recent, are at the forefront of the matter.

It All Starts with Marsh

Critics of social media and the issue of censorship on those platforms have had an answer to this state actor issue. They point to a number of older cases suggesting that at times a private entity can look so much like the government, or that private property can look so much like public property, that the First Amendment must govern how it can be operated. Most importantly, they point to the 1946 Supreme Court case of Marsh v. Alabama.

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access to places where they can

speak and listen.”

Justice Hugo Black went so far as to say that, “Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.”

Unsurprisingly, the same individuals who are complaining about being kicked off of Facebook, Twitter or other social media platforms have cited Marsh v. Alabama as one of their main points, arguing that social media sites are just like that company town in that they are open to everyone, just like a public forum, and should be treated like one legally as well.

Kennedy went on to explain that

JUSTICE Anthony Kennedy

the emergence of the internet, and social The attention around this decision, media specifically, simplified the Court’s particularly because of Kennedy’s past difficulties in determining which phrasing of his opinion, led to the venues beyond the “traditional” public popular belief that these social forums should be considered public media companies could not ban forums, explaining that, “While certain people from using their in the past there may have been platforms without violating the difficulty in identifying the most First Amendment. However, important places (in a spatial sense) an important distinction in all STEVE MULROY for the exchange of views, today of this is the fact that the court the answer is clear. It is cyberspace — did not address the question the ‘vast democratic forums of the Internets’ of whether or not private social media in general, and social media in particular.’” companies can establish their own rules of conduct on their platforms and then exclude Justice Samuel Alito, though he chastised him users who violate those rules. This important for his “undisciplined dicta” and “unnecessary distinction has been seemingly overlooked rhetoric,” agreed with Kennedy — somewhat. by many crying out for being censored.

Similar to Kennedy, Alito recognized that states have an interest in protecting children from “If the government blocks access to the internet, abuse; moreover, he added, “It is legitimate it’s going to have to prove that there’s no less and entirely reasonable for states to try to stop speech-restrictive alternative to accomplish abuse from occurring before it happens.” But, whatever it’s trying to do,” noted professor Mulroy. he noted, the North Carolina law under which Packingham was convicted must ultimately Halleck and the be deemed unconstitutional because it also State Actor bars sex offenders from gaining access to “a The debate surrounding the evolving definition large number of websites” — including, but not of social media’s role in society, as either this limited to, Amazon, The Washington Post and century’s news publishers or just new wave WebMD — “that are most unlikely to facilitate bulletin boards, may be for nothing though. the commission of a sex crime against a child.”

Regarded as one of the final nails in the coffin But he also disputed any suggestion that of any argument that the First Amendment cyberspace is, as he put it, “the 21st century binds social media companies, Manhattan equivalent of public streets and parks,” which Community Access Corporation (MCAC) would leave states with “little ability to restrict v. Halleck was a June 2019 case that the sites that may be visited by even the most gave the justices the opportunity to dangerous sex offenders,” arguing that “there are specifically consider this concept of a important differences between cyberspace and state actor from a First Amendment the physical world.” So even though the justices analysis. It’s seen as the most recent all agreed on the result in the decision, it may be rebuke of arguments using Marsh v. harder for them to find common ground in future Alabama in their state actor claims. cases involving the First Amendment and the internet.

This case looked at whether Manhattan Community Access Corporation, operating a public access TV channel in New York City that provided the community with a “public forum,” was a state actor for the purposes of First Amendment examination.

The question was, did the First Amendment control how the private nonprofit ran and controlled the public access channel? The lawsuit came about when MCAC took action against several former employees who aired a program which was critical of the cable TV station. MCAC canceled the program, but also barred the two former employees who produced the program from their offices and building. These two former employees sued MCAC for violation of their First Amendment rights. Ultimately, Justice Brett Kavanaugh held that despite the fact that the cable channel’s beginnings were based on a government mandate to provide community access, the private corporation that operated and managed the cable TV station was not a state actor in terms of the First Amendment. Because the cable TV company was not a state actor, Kavanaugh held that the former employees could not sue MCAC for a First Amendment violation.

T N E M ND “I think that even Justice Alito’s more narrow concurrence confirms that access to the internet is very important from a free speech perspective, and that restrictions on access will be subject to strict scrutiny,” said Memphis Law professor Steve Mulroy, a constitutional law expert.

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“It’s been clear for literally decades that private actors are not state actors just because they are doing services over the internet,” said Eric Goldman, author of the Technology and the Law blog and a professor at Santa Clara University School of Law. “And we got a reaffirmation of that principle from the Halleck decision that really emphasized that private publishers are not state actors and any lawsuits based on state action principles are going to fail.”

Professor Mulroy agreed, stating “I’m skeptical that the Court will be open to viewing private companies as state actors for First Amendment purposes.”

“The cases which allowed private actors to be considered state actors for given purposes were old cases primarily motivated by a court’s desire to bar racial discrimination prior to the passage of the civil rights. That doctrine has not been used much in recent years, but that does not mean that legislatures could not pass protections keeping private social media companies from being too restrictive re: access and speech.”

BLOCKED BY THE GOVERNMENT Another high-profile issue involves government officials blocking users who are critical of them or removing their critical comments from their social media accounts. Many deride this practice as a core violation of the First Amendment principle which states that people have the right to freely criticize public officials.

This core belief was succinctly stated in the historic decision New York Times Co. v. Sullivan dealing with free press and libel. In that decision, Justice William Brennan noted that there is a “profound national commitment that debate on public issues should be uninhibited, robust and wideopen, and that it may well include vehement, caustic and 18

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sometimes unpleasantly sharp attacks on government and public officials.”

replied with a critical comment that was quickly deleted from the page.

The Supreme Court has recognized social media as some of the “most important places” for speech and the sharing of viewpoints. And like the majority of us, our governmental officials and various agencies have created their own social media profiles that they use to connect and communicate directly with their constituents at what is a previously impossible scale. However, some public officials are using their social media accounts as a form of censorship rather than a tool of governance or freely shared viewpoints.

The Court found that the deletion of the comment was indeed viewpoint discrimination. But the case itself raised a new question about whether that type of censorship is considered official governmental policy or the stand-alone action of a government official.

The court found that in this case, the sheriff makes the policy for everything related to his elected office, including that of the office’s Facebook page. In this case, the Sheriff’s Office posted a notice that they would delete the comments, so it became clear that whoever deleted Robinson’s comment did so according to the official policy.

Earlier this year, the Fourth Circuit became the first appellate court to decide that government officials may not pick and choose what views appear on the government’s social media accounts. In Davison v. Randall, the Court found that a county official created a “public forum” when she made an official Facebook page for her office, and that she engaged in unlawful discrimination in that public forum by deleting the comments of a local critic.

This case has set precedent for similar cases going forward and made clear that when a government official or office creates a social media page or account, they are responsible with upholding and not infringing on the public’s free speech rights.

But nothing caught the public’s attention like the Trump case.

The Fifth Circuit also joined the growing number of decisions and cases dealing with this matter when they ruled in Robinson v. Hunt County that the sheriff engaged in unconstitutional viewpoint discrimination when he or his office deleted a Facebook comment with which he disagreed on the official Hunt County Sheriff’s Office page.

Trump & Twitter

Ever since coming into office as President, Donald Trump has used his personal Twitter account as a vocal platform to broadcast his official views and as a forum to interact with the public. He and his staff have even gone on record to describe Trump’s tweets as “official statements by the President of the United States” and have used his tweets themselves as illustrations of his official policy. President Trump has also used his personal account to take official actions that only a President could take.

For example, he nominated Christopher Wray as FBI director, announced

K A #F

In that case, there were several comments expressing anti-police sentiments on the Sheriff’s Office Facebook page. The office then posted that they would delete comments they found inappropriate.

In response to that post, Robinson

his administration’s things, that the President transgender military ban and his staff routinely and revoked California’s presented the Twitter emissions ban all via his account as “official” personal Twitter profile. and “MODERN DAY As a result of this, the PRESIDENTIAL”; National Archives that the President Jameel Jaffer concluded that Trump’s conducted official tweets are “official records business from that must be preserved under the account; that the the Presidential Records Act.” President’s tweets constituted “official records” under the In Knight First Amendment Inst.

Presidential Records Act; that v. Trump, seven individuals — the President used the account whom the President blocked from to “engage with foreign leaders”; following his personal account and that he used “likes,” “retweets” on Twitter — sued, claiming that and “replies” to interact with Trump and other responsible and understand the public. government officials violated their First Amendment rights.

Collectively, the court deemed those facts “overwhelming” evidence of The district court concluded that the account’s “public, non-private the President and his staff “exert[ed] nature.” Finally, it rejected the government control over” the President’s argument that because interactive space associated with any Twitter user can use the each of the President’s tweets blocking function, the President and that this interactive space did not act in an official capacity “constituted a public forum” in when blocking other users. The which viewpoint discrimination account, the court concluded, was was unlawful. In accordance “government-controlled property.” with its rulings, the court issued The President also argued that his a declaration holding that the account is not a public forum and, President’s blocking of individual even if it were, blocking “did not accounts “because of their express ban or burden anyone’s speech.” political views” violated the The Second Circuit rejected these First Amendment. arguments as well, joining the Fifth Circuit in Robinson in holding The President appealed that blocking a social media user the decision. constituted a burden on free speech. Additionally, by blocking On appeal, the President’s main plaintiffs, the court concluded, argument was that he used Twitter the President limited their ability in a personal and private capacity. to view, like, reply directly to, or The Second Circuit summarily retweet the President’s tweets, and disagreed. It joined with the Fourth thereby fully participate in the Circuit Court in Davison, stating robust conversation that followed that a public official may use his the President’s tweets. Plaintiffs or her social media account in were therefore censored and an official capacity. The court this censorship, as the President then rejected the notion that the conceded, was attributed to their President used his account in a unfavorable speech toward him. private nature. It noted, among other

The ruling in Knight established some very important new guidelines for how our government officials may interact with various audiences when using social media.

“To say that if a public official conducts any public business on their Twitter account, they have to accept all comers, even those that are critical of them, entitles a large number of people access to these important means of expressing dissent in a forum where it’ll be seen,” noted professor Mulroy.

As noted by Jameel Jaffer, executive director of the Knight First Amendment Institute, these rulings will hopefully result in a more robust public conversation.

“This is the way that public officials engage with their constituents now,” said Jaffer in an interview with Vox. “It’s not just President Trump, it’s public officials all over the country engaged with their constituents, maybe principally, through social media.

And if you had created a rule that allows public officials to block from their social media accounts anyone who criticizes them, you would have had a pretty dramatic effect on public discourse.”

S W E N KE REAL SOLUTIONS TO FAKE NEWS

Seventy percent of Americans get their news from just two sources, Facebook and Google, according to a recent Pew Research Center survey. Add YouTube and Twitter, and you are looking at what have become America’s integral sources for not

just news, but more importantly fake news and disinformation.

Since the revelations of the Russian hacking in the 2016 election and the Cambridge Analytica scandal, there has been a huge outcry for large social media sites to reduce the amount of fake news that is widely disseminated through social media platforms. It has been well documented that these platforms became a breeding ground for misleading and at times entirely fabricated news stories, quite often disguised as being from legitimate news outlets. This fake content was not only produced by and distributed by politically-motivated entities (that is, Russia), but also by a variety of foreign and domestic individuals who sought to make money from the endeavors by either profiting from online advertising or by setting up entire news sites designed to push out controversial content (often called propaganda mills), sometimes with no basis in reality and not done by journalists or reporters at all.

Consider the following example regarding one such outlet highlighted recently by the New York Times: It may not be a household name, but few publications have had the reach, and potentially the influence, in American politics as The Western Journal.

Even the right-wing publication’s audience of more than 36 million people, eclipsing many of the nation’s largest news organizations, doesn’t know much about the company, or who’s behind it.

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of ways to lessen the circulation of fake news while enhancing the visibility of trusted news sources.

“Are we concerned because there is actually fake news.”

Since fake news is created so easily, is disseminated quickly and is taken in by individuals on a massive scale, it will likely persist without some kind of oversight or regulation.

One main problem is that a policy response to the problem has been, and probably will continue to be, very limited in the U.S. The legal and regulatory frameworks within which social media companies operate do not lend themselves to easily implement answers. For the most part, beyond 2017’s Honest Ads Act requiring greater transparency in political advertising on social media platforms, the country has seen very few policy initiatives directed at the spread of fake news and disinformation, which is a drastic contrast to how other countries such as Germany, France and the United Kingdom have handled the matter.

But a prominent question has come to be: Does legislation drafted over 20 years ago, before social media even existed, still best serve society as the guidepost for how we craft social media policy today? Should there be certain modifications or adjustments made to these policies in light of new technologies and forms of communication? Should social media companies take it upon themselves to police the content, and if so, do we risk losing the new communication mediums as we currently know them? These questions illustrate the obvious disconnect between our policy frameworks for social media regulation and the reality of technology in today’s media environment.

a p o r #p

Thirty-six million readers. And the majority of them do not realize the “news outlet” they are following is any different than their standard TV news. The Times article notes that the publication does not even bother with reporters at all, but it still shapes the political beliefs of those 36 million readers. In the last three years alone, Western Journal Facebook posts earned threequarters of a billion shares, likes and comments, which according to the Times is “almost as many as the combined tally of 10 leading American news organizations that together employ thousands of reporters and editors.”

The slightly good news here is that tech firms and social media giants are making an effort to lessen the reach of fake news sites like this one.

According to the Times, “The site has struggled to maintain its audience through Facebook’s and Google’s algorithmic changes aimed at reducing disinformation — actions the site’s leaders see as evidence of political bias.”

The question in all of this is what is the difference between political bias and the effort to protect fact-based information?

Also, who will be the deciding power in this situation? The government? Facebook?

An independent regulatory agency?

Additional actions taken by social media companies include banning fake news purveyors from their platforms and ad networks; identifying and expelling bots and other fake news profiles; working with fact checkers; providing users with easy access to countervailing legitimate news stories; and adjusting their algorithms in a variety 20

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Section 230

In the U.S., Section 230 of the Communications Decency Act of 1996, which many consider the most important piece of internet legislation ever created, holds that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, Section 230 has allowed the internet to thrive on user-generated content while platforms and internet service providers were not held as responsible for whatever those users created or might create. Courts have designated that social media Lucian platforms fall into this category of “information content providers,” meaning that they have the right to engage in content filtering as they see fit and have immunity from most — but not all — legal liability for the content distributed on their platforms. As it currently stands in the U.S., the government can’t require these social media companies to be more responsive to or take more responsibility for the fake news problem.

“Back when 230 got passed, nobody knew that it would have the kind of effect it’s having today,” says Lucian Pera, a partner at the Memphis law firm of Adams & Reese and a First Amendment and media law expert. “But I don’t buy the viewpoint that social media companies have a responsibility to burst us out of our micro-partisan bubbles.”

It may be important to remember when dealing with fake news and disinformation via social media, and the censorship or removal of it, that some of the principles fostered by the First Amendment and Section 230 promote the concept that more speech is the best antidote to false speech, otherwise known as the marketplace of ideas. But, are the very protections that the First Amendment and Section 230 provide and foster for the marketplace of ideas inadvertently creating the conditions and encouraging the exact type of speech that undermines the type of democratic process that the laws are Pera intended to serve and strengthen?

“Are we concerned because there is actually fake news, Russian bots that are creating news stories, or are we concerned about the label of somebody like the Washington Post, the New York Times — obviously a news institution — being labeled as fake news?,” Pera asks. “I don’t know which to be more concerned about.”

In his article “The New Irony of Free Speech,” Dr. Moran Yemini, a senior fellow at the Center for Cyber, Law & Policy at the University of Haifa, and a visiting fellow at the Information Society Project at Yale Law School, hits upon this same idea. “The internet has provided a solution to the 20th century problem of expressive inequality,” he notes. “But the digital age presents a new irony of free speech, whereby the very system of free expression that provides more expressive capacity to individuals than ever before also systematically diminishes their liberty to speak.”

checking benchmarks and more transparency are the answer. It’s likely that no single item would work without some combination of the others, but it’s clear that something must evolve.

A better, stronger and more informed quality of journalism is one answer.

that they don’t care to see, that might make the person hunker down more and be resistant.”

From a legislative standpoint, one of the ideas with the largest impact deals with amending Section 230 itself. Many legal scholars have put forth that amending 230 would be a reasonable way to affect the ways that online content is published and distributed. A modified 230 might only protect social media companies if they were to take reasonable steps to address or prevent unlawful content posted by users of their platforms. The resulting threat of civil liability might take care of the fake news problem by making it more attractive to social media companies to remove false and purposefully misleading stories.

a d n a ag Memphis Law professor Daniel Kiel suggests that this is not a new problem, however, even if the circumstances and the technology are new factors.

“I think that by it’s very nature, the protection that the First Amendment provides also does so for false and misleading, even deliberately false and misleading information, and that has always been a risk,” he stated. “Some say that this is the risk you run by protecting Daniel Kiel ideas but that it is still better to have them out in the open than not. The problem might be that when the protections are not fostering the narrowing of the path towards truth, but in fact are making that path unpassable, have you gone too far in protecting the speech? There is a danger in overprotecting a right, and that balance has always been something that we are trying to find.

“This is a modern-day scenario with different technologies and communication involved.”

IDEAS AND PROPOSALS There have been a number of ideas and proposals put forth in an attempt to counter the problem of fake news and misinformation.

Some focus on policymaking and regulatory oversight. Others look at ways in which social media companies’ algorithms could be tweaked to filter out false news items or misinformation. And some suggest that fact-

“I think it’s worth building up, in whatever way we can, better and more trustworthy news sources,” says Pera. “Nonprofit journalism might be one way to do it. There are models out there for how to do this sort of thing. And maybe the answer to fake news, if you are a concerned consumer, is to pay for your media.

“It seems to me that if you want to fight fake news, then you need to engage with the media and reward and pay for better news. True news. That has to also mean, better speech, and better news.

You have to be willing to pay for the best news you can find. And you have to help promote those quality sources. We’re not totally passive in this.”

This seems to be an evolution of the marketplace of ideas concept, where more speech, and better speech, is the counter to false speech.

Pera suggests that a lot of the onus is on users and news consumers to be more discerning, no matter the platform they are using. He stresses that readers have to pay more attention to their news sources and be willing to pay for quality journalism, but at the same time, people have the right to live in a bubble if they want to. Kiel sees these bubbles as problematic but notes that is also dangerous to attempt to force people to see news and views, or censor that same news that they do not want to see.

“The heart of the problem seems to be focused around the ability of social media to create these communication and opinion bubbles in society,” says Kiel. “And I don’t know if limiting the speech or requiring the speech to be a broader range of ideas solves that problem of these bubbles.

If you’re forcing someone to see viewpoints

“Given how ubiquitous and important social media has become as a source of basic information for voters, I think some more robust consumer-protection regulation is in order,” said professor Mulroy. “More traditional publishers have potential liability for not properly screening deceptive, defamatory, or criminal information. There’s nothing sacred about the current wording of Section 230.”

As it relates to transparency, another idea directed at social media companies deals with the open disclosure of their online advertisements.

A proposed law like this would require the social media companies to provide their users/viewers with information about their sponsors. This is similar to the laws governing commercial sponsorship identification in traditional broadcast media. The idea here is that social media users seeing this paid content could then better draw their own conclusions about its accuracy and where the information is coming from, whose interests it serves and what values it truly represents.

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This might in fact help with a small portion of fake news and the ability to create a more informed public, but a problem with this solution is that it fails to address the fact that many of the fake news stories that spread across the internet and social media feeds are often unpaid content.

Another problem here is that very recently, Facebook quietly changed the language of its advertising policies related to paid political ads. Under the new terms, political ads on the platform are ineligible for fact checking, according to a Facebook spokesperson in an October article in “Popular Information”. Prior to October, Facebook had a rule against running any ads with “false and misleading” content: “Ads, landing pages and business practices must not contain deceptive, false or misleading content, including deceptive claims, offers or methods.” Now, the social media company exempts politicians from its third-party fact-checking program, saying its efforts to curb fake news and misinformation don't apply to politicians globally.

Nick Clegg, vice president of Global Affairs and Communications at Facebook, said the company does not believe it’s appropriate to referee political debates and prevent a politician's speech from reaching their audience and being subject to public debate and scrutiny. What it also means is that excluding political paid ads from review by third-party fact-checkers means that no political paid ad will be rejected for false content.

In another transparency-related approach, many experts point toward changing the algorithms

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that decide what content users see and when. And they could start by empowering users with more individualized tools that let them understand and control the information they see.

Algorithms by Facebook’s newsfeed or Twitter’s timeline make decisions about which news items, ads and usergenerated content to promote and which to hide. That kind of curation can play an amplifying role for some types of incendiary content, despite the efforts of platforms like Facebook to tweak their algorithms to “disincentivize” or “downrank” it. Features designed to help people find content they’ll like can too easily funnel them into a rabbit hole of disinformation.

Perhaps platforms should examine the parts of their infrastructure that are acting as an amplifier or microphone for dangerous content and address that root cause of the problem rather than censoring users.

That way, users wouldn’t be held hostage to a platform’s proprietary algorithm. Instead of serving everyone “one algorithm to rule them all” and giving users just a few opportunities to tweak it, platforms could open up their programming interfaces to allow users to create their own filtering rules for their own algorithms. News outlets, educational institutions, community groups and individuals would all be able to create their

own feeds, allowing them to choose who they trust to curate their information and share their preferences with their communities.

An interesting twist on a regulatory idea was recently suggested in “Managing the Misinformation Marketplace: The Fight Against Fake News” in the Fordham Law Review.

Suggesting one plausible way to achieve a balance between protections for speakers and listeners/ readers would be to license professional journalists in the same way that other professions are licensed. “Journalists’ special access to information justifies regulation of this sort,” the article notes. “Journalists often have investigatory resources and press privileges bestowing them with information that others cannot access; like clients of other professionals, media consumers should be able to trust journalists and rely on information they distribute as intermediaries between information sources and media consumers.”

This journalistic professional regulation would increase the protections for the public while also maintaining the same level of participation from sources.

In a way, this is a professional and enforceable ethics code for journalists, which would provide the public with assurances of trusted sources with factual information.

“Because people have difficulty identifying fake news sources

and fact-checking their sources, a group of state-approved, but not public, professional journalists and legitimate news organizations would enable people to rely on the information they receive from these sources,” notes the Fordham article. It also points out that this set of statutory rules for journalistic licensure would not preclude a non-journalist from publishing news, it would just be obvious that it was from a non-licensed source, therefore allowing the reader/ viewer to be less susceptible to manipulation by purposefully fake news and misinformation.

What’s Already Happening?

In recent months, Republican Sen. Josh Hawley has introduced a bill tying social media platforms’ intermediary-liability immunity to “unbiased” content moderation.

The Ending Support for Internet Censorship Act, would regulate content moderation by the large social media platforms like Twitter, Facebook and YouTube (that is, Google). Senator Hawley’s bill targets these platforms that moderate content in what he terms a “politically” biased way, by revoking their protections under Section 230.

The senator has publicly criticized Section 230 as “a sweetheart deal that no other industry enjoys.” His bill would require these companies to periodically demonstrate to the Federal Trade Commission (FTC) that they are “providing a forum free of political censorship.”

Critics of Hawley’s bill point out that the government can’t be trusted to regulate political content online. But they also point out that for-profit companies such as

Facebook and Twitter have not shown any evidence that proves them to be any more trustworthy or discerning than the government.

this issue, both in terms of related lawsuits and court decisions, as well as with suggested ideas and proposed executive orders.

neutrality when they moderate content. If they were to fail to do so, these platforms could be stripped of their Section 230 protections.

“Today, these platforms’ powers to take down content — and in effect to regulate the media — look a lot more like what states do than what publishers or even cable news channels do,” notes a recent article from LawFare. “If one accepts the premise that private content moderators are ‘the new governors’ of online discourse, then the question is not so much whether a public agency can be trusted to govern, but whether it is a more trustworthy governor than a private corporation operating outside of any legal framework.”

As of this writing, the President is reportedly drafting an executive order, “Protecting Americans From Online Censorship,” which would address allegations of bias from technology and social media companies. Critics point out that though this proposal is, on its face, in service of free speech, the executive order would likely increase censorship instead.

Revoking those protections would have the unintended effect of discouraging the free flow of content online, however.

Moderators would inevitably move more towards cracking down on any potentially defamatory post, erring on the side of caution to exclude anything remotely libelous or offensive to anyone.

President Trump has been at the forefront of addressing

Politico and CNN report that the most recent version would instruct the Federal Communications Commission (FCC) and FTC to verify that social media platforms operate with political

“To the extent it goes against Section 230, there’s a real concern the E.O. would exceed executive authority,” professor Mulroy noted.

“Also, intervening to prevent supposed ‘bias’ in one direction or another poses far more dangers of improper censorship than regulating for speech that is already criminal, defamatory, fraudulent, etc.”

“I have a number of reasons why I don’t think this executive order will ever actually go out,” said Harold Feld, senior vice president for Public Knowledge, one of the nation’s premier consumer advocacy organizations. “For one thing, it would completely contradict everything that the FCC said in the Restoring Internet Freedom Order (RIFO) repealing net neutrality. As a result, the FCC would either have to reverse its previous findings that Section 230 prohibits any government regulation of internet services, including internet service providers (ISP), or see the regulations struck down as arbitrary and capricious.

Even if the FCC tried to somehow reconcile the two, Section 230 applies to ISPs. Any ‘neutrality’ rule that applies to Facebook, Google and Twitter would also apply to AT&T, Verizon and Comcast.”

AN UNCERTAIN FUTURE The one thing that is clear after considering this issue is that there are no easy and immediate answers.

transparency for the public to understand how Facebook, Twitter, Instagram, etc. make decisions that affect their individual online expression.”

A good place to start might be more transparency and a more informed public.

Even then, many see the answers as a “lesser of various evils” sort of scenario.

“There is no one-size-fits-all answer to this question because these platforms operate differently and with different commitments to a transparent process for users,” said Suzanne Nossell, CEO of PEN America, a human rights and advocacy organization for writers, in a recent ABA Journal report. “We are concerned about the discretion that exists at the hands of these platforms, and we advocated for greater

Our strong First Amendment traditions give powerful autonomy to these social media companies to curate their platforms and develop their own terms of service as they see fit. But aggressive curation then raises many concerns about the amount of concentrated power that these same limited number of companies have to influence the flow of information and news over a few select platforms. When looking to

craft policy around this issue, neither road seems like an attractive choice to take.

What’s becoming abundantly clear is that, whether or not one agrees with Kennedy’s “new public square” opinion, he had a great degree of foresight when he noted the importance of the internet and the cyber age on our country’s free expression.

“While we now may be coming to the realization that the cyber age is a revolution of historic proportions, we cannot yet appreciate its full dimensions and vast potential to alter how we think, express ourselves and define who we want to be.”

* Since this article was written, Twitter has banned all political ads from its service, Google has said it will no longer allow election-related ads to target people based on political affiliation and it has banned ads with demonstrably false claims that could undermine an electoral process, and Snapchat has announced a fact-checking policy for political ads on its platform.

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LEGA L

By Ryan Jones

John Bobango (JD '83) & Mary Lauren Bobango Stewart (JD '19)

I

T’S CLEAR FROM WATCHING JOHN BOBANGO (JD ’83) AND HIS DAUGHTER MARY LAUREN (JD ’19) THAT THEY’RE CLOSE. There’s an easy

going sort of back-and-forth between them that is endearing to see, even in the middle of a photo shoot when a lot of people would be uncomfortable. It comes through when Mary Lauren brushes something off John’s shoulder or tells him to smile, and when John proudly lights up when his daughter speaks or laughs. It’s evident in the way their answers to questions for this article often resembled each other’s, even though they were interviewed separately. Both of them talk about the importance of family, but not like a lot of people do in a stereotypical, canned response sort of way. Family is clearly something that’s important to both of them and ties them together. And in a way, Memphis Law also ties their family together. They both attended law school here — as did John’s wife and Mary Lauren’s mother, Lisa (JD ’83). While they’ve both lived elsewhere and could have chosen to practice anywhere, it’s clear that they’re on the right path back here in Memphis practicing together and, in many ways, learning from each other while watching their relationship evolve into a new phase.

The name Bobango (i.e. the law firm of Farris Bobango PLC) is so synonymous with Memphis, both within

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and outside of the legal community, that it feels like the family has always been a part of the city. But despite picking up an easy going southern way of speaking, John came to Memphis from across the country and life has kept bringing him back here over the years.

“My father was in the Navy and I actually grew up on the West Coast, in the San Francisco area and in Hawaii until I was 14 or 15, and then my dad retired when we moved to Millington,” said John. He finished up high school in Memphis and went to undergrad at nearby Arkansas State University.

But his journey once again led back to Memphis when after graduation, he was offered a job as a traveling chapter consultant for his fraternity Pi Kappa Alpha (Pike), which was headquartered here in Memphis by then Pike CEO Pat Halloran. The job took him all over the country, working with various chapters and Pike alumni in cities throughout the U.S. But along the way, he kept having discussions with fraternity alumni who were attorneys, which piqued his interest in the law.

He soon moved back to Memphis and took a job with a local bank, but law school kept coming up as an option.

“I knew that I liked Memphis, I loved the people and the community, and wanted to stay in Memphis,

ALUMNI PROFILE

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Memphians always want to improve the community and they welcome anyone that can help make that happen.”

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and the lawyers I knew here were very encouraging about staying here and attending law school at the University of Memphis,” said John of his decision. “Memphians always want to improve the community and they welcome anyone that can help make that happen and have the same spirit that I think the city has.”

John has ample reason to remember his time at Memphis Law fondly beyond just getting his JD. He met his wife Lisa here as well.

Though they met each other in their first semester, it wasn’t until halfway through their 2L year that they started dating. By the time their 3L year rolled around, they were in every class together, which John credits as a tiny “trade secret” to his law school success. “Lisa is extremely bright and takes tremendously

fantastic notes,” noted John. “So I got the benefit of getting to look over her notes, as well as my own, but hers were much better.”

Life then took the two of them away from Memphis again with their decision to move to Florida and enroll at the University of Florida for John’s LLM degree in taxation and Lisa’s master’s in business. There was a year’s difference in the length of their programs there, so when John wrapped up his LLM, Lisa still had a year left. That’s when John’s road back to the Mid-South inadvertently started once again.

“I saw a job posting at the law school for a law firm based in Little Rock/Pine Bluff, Ark., and I was intrigued by why a firm from there was interviewing at the University of Florida,” said

John. “I decided to interview with them just for the practice experience, since after law school I knew I was going straight to graduate school and didn’t get to interview anywhere at the time.”

It didn’t take long, before John was hired by that firm and moved back to Arkansas to work while Lisa finished her graduate degree in Florida.

He traveled all over the country every week during that first year while they were in their long-distance relationship, but she soon moved to Arkansas with him for a job at a prominent financial institution in Little Rock. They lived and worked like that for three years when suddenly Memphis came calling again, this time with Lisa as the impetus.

She was recruited out of the blue by a subsidiary of Union Planters Bank for a move to its offices in Memphis. She accepted the position and in 1987 the Bobangos moved back to Memphis. They have been here with their family ever since.

On the advice of her father, she shifted to a degree path in business and marketing, but still didn’t really have law school, or even Memphis, in mind for her next steps after graduation.

Their daughter Mary Lauren grew up in Memphis, went to St. George’s Independent School from K-12 and wanted to see what it was like outside of Memphis as well, so she went to Auburn University where she started out on a very different path than her father.

“No one in my family ever pushed me toward law school, but it has always been there in the background throughout my whole life,” said Mary Lauren. “But, especially because of who my dad is, I never wanted to fully commit to law school unless it was something I was ready to embrace wholeheartedly.”

“Initially, I was a pre-nursing major at Auburn,” said Mary Lauren. “But the summer after my freshman year, I had what I call my quarter-life crisis. I felt like it was just such a specific path and job and I was scared I was pigeon-holing myself.”

So, like her father, she got some wide-ranging experience around the country (and the world) before she really settled on the idea of where her career was going to go. First, she did a mission trip to China. Then, after her sophomore year, she

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interned in Washington, D.C., for Sen. Bob Corker in constituent affairs.

After that, she spent a summer working at FedEx in their marketing division, with the thought that she might go straight into that division after graduation. Ultimately, law school won out and she turned down an offer from FedEx, took the LSAT and started looking at law schools.

“I knew I wanted to go to a bigger city after Auburn,” said Mary Lauren.

At first, she was reluctant to come back to Memphis. “I was thinking D.C., New York, something like that. Knowing how involved my dad and my parents have been in Memphis and the law school, I thought I just wanted to do my own thing a little bit and maybe go somewhere else.”

But she ultimately realized that Memphis could offer her the best of two worlds without some of the disadvantages another city would present.

She could come to Memphis, attend law school and get the bigger city she’d been looking for at a time when Memphis was really growing and becoming appealing to a younger generation. But she wouldn’t be faced with the daunting idea of moving by herself to an entirely new city and becoming established there, discovering it for herself and losing some of her focus on law school. In other words, Memphis was newer and bigger, but it was also familiar.

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Like her mother and father, Mary Lauren is incredibly smart. She knew having her family and support structure here while in law school, in a city where she could enjoy living but not become overwhelmed, would be the ideal environment for her to excel in law school.

“It was just so amazing going through law school with parents who understood what it was like and to have them there when I needed them,” she said. “It was nice to not have to explain anything to them. It was just nice to have a support system nearby that understood everything.”

John also saw some of himself and his wife in Mary Lauren throughout law school.

“Mary Lauren is a really good combination of both Lisa and myself,” said John. “She’s really analytical like her mother and processes things really well. She is a tremendous listener and learner. I think both of us really liked law school for the learning aspect of it and she takes advantage of every learning opportunity that she’s been given.”

And she’s wanted to always be clear that her opportunities are a part of her own hard work and not just her family name. It’s important to her, and over the course of law school, is something that evolved on its own.

“I feel like because of the hard work and focus on my classes I had throughout law school, the focus changed from the attention on my last name alone to the attention coming from my own achievements and accomplishments,” she noted. “I wanted so badly to do well in law school. I never really went out. People were going to bar review and I was like ‘But we have class on Friday! I need to prepare!’”

Her thoughtful decisions and ability to listen and learn must have worked, because she graduated No. 1 in her class in May 2019.

Now there are two Bobangos at the Fariss Bobango firm, and Mary Lauren and her dad have entered a new stage of their relationship together. John is excited to see his daughter learn and grow. Mary Lauren is looking forward to learning from her dad (she says he loves a “teaching moment”) and is becoming more and more comfortable with where her path is taking her, regardless if it looks similar to her fathers in some ways.

“I always wanted to keep an open mind about where I worked and what I wanted to practice,” said Mary Lauren. “But I realized in law school that I really just did not want to be a litigator.

I started leaning more toward transactional work and it was just a natural progression and a natural fit for me to end up working alongside my dad.”

And her dad isn’t surprised about that natural fit either.

“I really think she’ll enjoy business transactions just like I do, because she is really good at putting a puzzle together,” John said of her natural progression toward mutual specialties.

“For me, in regard to working together, it’s really a few big things: It’s always great when you get to spend more time with one of your children no matter what, but it’s also been fun to watch Mary Lauren learn and her legal mind develop to where it is today. It’s really rewarding to know that whatever skill sets and things that people have taught me, I get to pass on to her and help her learn and make a living.”

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Alumni Notes

’68

Judge Richard McCully was awarded the Distinguished Service Award by Sigma Alpha Epsilon Fraternity, the highest honor a member of SAE can receive. McCully is only the 144th recipient of this award in the history of the fraternity with over 350,000 initiates. ’71

Sanderson

William Sanderson recently wrote and released his memoir about his 45-plus year career in Hollywood, which began when he did his first play while enrolled in law school. The book is titled “Yes, I’m That Guy, The Rough-and-Tumble Life of a Character Actor.” ’72

Irvine

John A. Irvine has again been selected to Best Lawyers In America in Commercial Litigation and to Texas Super Lawyers in Business Litigation.

He is currently Senior Counsel at Porter Hedges, a 115 lawyer firm in Houston, Texas. ’74

Gordon Ball was recently recognized as the 2019 “Trial Lawyer of the Year” by Public Justice, the nation’s leading nonprofit legal advocacy organization. The award recognizes the work of Ball and his team in a 20-year long class action lawsuit, Hale v. State Farm, which resulted in a $250 million non-reversionary settlement and became a milestone case that highlighted the use of dark money in politics. ’77

William “Billy” Bond recently retired from the Shelby County District Attorney’s Office in March after more than 40 years as a prosecutor in various settings.

R. Hunter Humphreys was named as a 2019 University of Memphis Cecil C. Humphreys School of Law Alumni Chapter Pillars of 30

UNIVERSIT Y OF MEMPHIS

Excellence Awards honoree. He was also listed as a leading U.S. attorney in the area of real estate law and secured lending in the Chambers USA 2019 Guide. ’80

Randall B. Womack was listed as a leader in environmental law in the Chambers USA 2019 Guide. ’81

Linda Warren Seely recently received the Chair’s Award from the Chair of the Section of Dispute Resolution at the Annual ABA Section of Dispute Resolution Spring Conference. ’82

Karen McCarthy published her book “Murder at the Candlelight Vigil” in July.

Paul Prather, a shareholder in the Memphis office of Littler, the world’s largest employment and labor law practice representing management, has been recognized with a top ranking in the 2019 edition of the Chambers USA: America’s Leading Lawyers for Business. Chambers placed Prather in Band 1, the guide’s highest distinction. ’83

Walter L. Fitzgerald Jr. has been appointed dean and professor at the Idaho State University College of Pharmacy. Also a pharmacist, he served on the faculty of the University of Tennessee Health Science Center in Memphis for 24 years. In 2005, he was appointed founding dean of the South College School of Pharmacy in Knoxville.

Randolph

’87

’96

William “Bill” Randolph recently received the President’s Award from the Tennessee District Public Defenders Conference at its annual meeting in Sevierville. The citation read in part: “In Recognition of Dedicated Service to the Cause of Justice in Indigent Defense.”

Kevin Snider was recently appointed as a Rule 31 Mediator in Civil and Family Law.

joined the staff of U.S. Sen. Marsha Blackburn as state counsel and field director.

’97

Kirk Caraway of the law firm Allen, Summers, Simpson, Lillie & Gresham, PLLC, has been selected for inclusion in The Best Lawyers in America for 2020.

’Jeff Parrish recently

Caraway

Ronald T. Catelli opened his own law firm, The Catelli Law Firm LLC, in July 2018.

’90 Parrish

Judge Duane Slone received the 2019 William H. Rehnquist Award for Judicial Excellence (one of the highest judicial honors in the country) from the National Center for State Courts.

Slone, of the Circuit Court in the Fourth Judicial District, was recognized for his groundbreaking work helping people with opioid use disorder.

The award honors a state court judge who demonstrates the qualities of judicial excellence, including integrity, fairness, open-mindedness, knowledge of the law, professional ethics, creativity, sound judgment, intellectual courage and decisiveness.

’99

Kimbrow

Chip Chockley began a new job as assistant county attorney with the Shelby County Attorney’s Office, focusing on civil litigation. ’01

Jennifer M. Eberle joined the law firm of Kinnard, Clayton & Beveridge. She will focus her practice on representing plaintiffs in medical malpractice actions, products liability and other personal injury cases.

’91

Wendy Geurin Smith recently joined the law firm of Shuttleworth PLLC as a member of the firm.

Smith

Rev. Dorothy Sanders Wells, Rector of St. George’s Episcopal Church in Germantown, has been named chair of the board of directors of Metropolitan Interfaith Association (MIFA). She is also a member of the boards of Church Health and Community Alliance for the Homeless. Wells completed her doctor of ministry degree at Candler School of Theology, Emory University, in 2018.

Vanecia Belser Kimbrow, a former Katheryn Hookanson fellow president of Memphis Law BLSA, and southern regional director of NBLSA, was recently elected the 12th president of the River City (TN) Chapter of The Links, Inc. She began this new role on the heels of successfully completing her tenure as president of the Memphis Chapter of Jack and Jill of America, Inc. ’00

U.S. Supreme Court Justice John Roberts presented the award to Slone at a ceremony at the Supreme Court in November.

’93

’98

Eberle

W. Bradley Gilmer joined the Memphis office of Harris Shelton Hanover Walsh PLLC as a member. ’03

Andy Anderson was elected as a county commissioner in Henderson County, Tenn., and was recently appointed to the Lexington, Tenn., Board of Zoning Appeals.

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Alumni Notes

Christen Castleberry Blackburn recently joined the Nashville office of Lewis Thomason as special counsel. She continues to handle tort litigation involving transportation, products liability and professional liability claims. She also dedicates a significant portion of her practice to employment litigation, defending employers against allegations of discrimination harassment and retaliation.

’04

Erin Melton Shea recently joined the law firm of Snider & Horner, PLLC.

Wiggins

Kyle M. Wiggins was recently named division vice president and associate chief counsel by Kindred Rehabilitation Services, a division of Kindred Healthcare, LLC, headquartered in Louisville, Ky. Wiggins has served as senior director and operations counsel for Kindred since June 2015.

Blackburn was recently named president of the Lawyers’ Association for Women (LAW).

’05

Lisa LaVigne earned her Privacy Law Specialist designation through the International Association of Privacy Professionals, which administers the program for the American Bar Association. LaVigne became the first Certified Privacy Legal Specialist registered in Tennessee.

Rebecca Laumann was recently promoted to executive director for the Center for International Education Services at the University of Memphis.

Jason Martin was appointed assistant U.S. Attorney for the Western District of Tennessee.

He works in the Civil Division, where he primarily defends the United States in civil litigation.

Andrew Battle Sanders joined the firm Stites & Harbison PLLC as counsel to the firm based in the Memphis office. He is a member of the Business Litigation and Trust & Estate Planning groups.

Sanders

’10

Derek Carson, of the law firm Cantey Hangar in Fort Worth, Texas, was recognized as a “Texas Rising Star” for 2019 by Texas Super Lawyers and Texas Monthly magazines.

’07

Patricia E. Adrian joined the Memphis office of Harris Shelton Hanover Walsh PLLC as a member.

Betsy Weintraub recently joined the team at Children’s Rights, a national nonprofit that uses impact legislation to reform the child welfare system, as a staff attorney. ’08

Laura Bailey, an attorney with The Crone Law Firm, PLC was recently promoted to principal attorney and senior vice president of legal operations for the employment law firm.

Bailey

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David L. Wyant Jr. was named a partner at the law firm of Shumaker, Loop & Kendrick LLP in Sarasota, Fla. ’11 Wyant

C. Grace Whiting currently leads the National Alliance for Caregiving in Washington, D.C. She recently provided testimony in the U.S. House of Representatives on the Older Americans Act and the National Family Caregiver Support Program.

Lindsey

’12

’17

Jonathan A. Lindsey of Martin, Tate, Morrow & Marston P.C. has been named a director of the law firm.

Dawn Campbell recently joined Butler Snow’s Health Care Practice Group following her clerkship with Judge Bernice Donald.

He focuses his law practice in the areas of payment in lieu of tax (“PILOT”) and other incentive programs, state and local tax, commercial and construction litigation and business planning. ’13

Andrew Francisco joined the law firm of Allen, Summers, Simpson, Lillie & Gresham PLLC as an associate attorney in March. His practice areas include insurance defense, immigration, employment and civil litigation.

Campbell

Rankin

Francisco

’15

Aurelia V. McBride joined the firm of Glankler Brown, PLLC as an associate.

Kibler

Matthew Schwimmer started a new job as an associate attorney at Griffin Clift Everton & Maschmeyer, PLLC, where he practices real estate, contract and business law.

Jason Susser and his firm Siskind Susser PC won the 2019 InnovAction award for legal innovation from the College of Law Practice Management.

Andrew Rankin was a panelist at the Latin Law Students' Conference, which was held at the Ole Miss School of Law, focusing on the topic of The American Dream: Post-2016. In May, he was the keynote speaker at the Panola County Bar Association's monthly meeting. He spoke on two topics: The Intersection Between the Sixth Amendment and Immigration Law and Representing Children Before Immigration Agencies. Additionally, he was a panelist at the Mid-South Conference of the American Immigrations Lawyers Association. ’19

Alexandra Chunn began work as an associate attorney at the law firm of Blair & Stroud in Batesville, Ark.

’16

Quynh-Anh Dang Kibler joined the Nashville office of Waller Lansden Dortch & Davis LLP in the firm’s Litigation and Dispute Resolution practice. Prior to joining Waller, Kibler served as judicial law clerk to the Hon. J. Steven Stafford, presiding judge of the Western Section of the Tennessee Court of Appeals in Dyersburg, and to the Hon. W. Neal McBrayer on the Tennessee Court of Appeals in Nashville.

’18

Chunn

Chelsea Caldwell presented alongside Memphis Law professor Lynda Black at the 2019 Memphis Bar Association Bench Bar Conference in April. Their presentation was titled “Baby Steps in Surrogacy Law,” which highlighted basic concepts in the assisted reproductive technology (ART) area of law as well as concepts uniquely applied to the Tennessee jurisdiction.

Additionally, she recently accepted a position as an associate attorney with Black McLaren Jones Ryland & Griffee P.C. Zachary Coleman started a job at Russell, Oliver & Stephens PLC as an associate.

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FACU LT Y

Accomplishments Lynda Black Professor Black was named as a liaison to the American Athletic Conference Student-Athlete Advisory Committee.

Bernard Burk Visiting professor Burk spoke as a panelist on a Financial Poise Webinar in August titled “Ethics—Best Practices, Bankruptcy Edition.” He also spoke at the Northern District of California Bankruptcy Judges’ Conference in September on Ethical Issues in Chapter 11.

DeShun Harris Professor Harris was elected as president for the Association of Academic Support Educators (AASE) in May. She will join the board as president-elect this year and will serve as president next year.

Harris also co-authored the article, “The ‘Pink Ghetto’ Pipeline: Challenges and Opportunities for Women in Legal Education”, in the University of Detroit Mercy Law Review.

Regina Hillman Professor Hillman, alongside professors Kerley and Morris, presented at the Federal Bar Association’s annual seminar in October.

The presentation “Legal Communication in the Age of Twitter” related to legal ethics in the context of online communications.

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D.R. Jones Professor Jones was a commentator and participant at the Privacy Law Scholars’ Conference held in June at University of California, Berkeley Law School. This is an annual invitation-only conference, where she served as the lead commentator on a paper titled “Resisting the Inventory: Close Readings of Big Data from the 1940 Census.”

Jones also discussed her latest scholarship at the Intellectual Property Scholars’ Conference held at the DePaul University College of Law in August 2019.

Daniel Kiel Professor Kiel was appointed associate director of the Benjamin L. Hooks Institute for Social Change. He was also named the FedEx Professor of Law at the law school.

He had a book chapter published in a collection commemorating the Memphis bicentennial, “Memphis: 200 Years Together.”

Carrie Eaker Kerley Professor Kerley, alongside professors Hillman and Morris, presented at the Federal Bar Association’s annual seminar in October.

The presentation was “Legal Communication in the Age of Twitter” related to legal ethics in the context of online communications.

Barbara Kritchevsky Professor Kritchevsky spoke on “Police Violence Against People with Mental Illness” at the Annual Congress of the International Academy of Law and Mental Health held in Rome, Italy, in July. She also moderated a panel sponsored by the Civil Rights section of the Association of American Law Schools at its annual meeting. The panel was “Resistance in the Streets and Through the System: The Phenomena of Protest in the Trump Era.” Additionally, she serves as the secretary of the Civil Rights Section of the Association of American Law Schools for 2019. Finally, the ABA National Appellate Advocacy Competition team that she coached reached the Sweet Sixteen in the national finals of the competition.

The two team members were Zane Heller and Alan Matthews.

Andrew McClurg Professor McClurg’s book, “Law Jobs: The Complete Guide”, written with professors Christine Coughlin (Wake Forest) and Nancy Levit (UMKC), was published in September by West Academic Publishing. Extensively researched and based on more than 150 interviews with lawyers who do the jobs covered, Law Jobs offers an in-depth exploration of every type of legal career.

Mary Morris Professor Morris, alongside professors Hillman and Kerley, presented at the Federal Bar Association’s Annual Seminar in October. The presentation “Legal Communication in the Age of Twitter” related to legal ethics in the context of online communications.

Steve Mulroy Professor Mulroy recently placed two scholarly works by invitation: “The Great Unskewing: Remedying Structural Bias In U.S. Elections”, in the University of Louisville Law Review; and “U.S. As Election Reform Outlier”, a comparative law book chapter in the forthcoming “Handbook of Election Law” to be published

by Routledge Press. The Louisville Law Review invitation came after Mulroy gave a presentation there based on his recently published book “Rethinking U.S. Election Law” as part of a spring 2019 book tour at several law schools. He accepted an invitation to speak on women and voting rights at an election law seminar at Chapman Law School in California. He recently testified before Congress on reauthorizing the Voting Rights Act when a subcommittee of the House Judiciary Committee conducted regional field hearings at the law school. Finally, Mulroy recently became the inaugural recipient of the Bredesen Professorship in recognition of accomplishments in teaching, scholarship and service.

David Romantz Professor Romantz was awarded the 2019 Olin Atkins University Professorship. This honor is a three-year professorship recognizing his outstanding educational, research, outreach and service missions.

Additionally, Romantz served on the ABA accreditation site team to the University of North Texas in 2019.

Katy Ramsey Professor Ramsey accepted an invitation to serve on the Tennessee Bar Association’s Access to Justice Committee.

Danny Schaffzin Professor Schaffzin served as senior faculty for the third Strategic Code Enforcement Management Academy hosted by the Law School in March.

He presented a workshop, Navigating the Complexities of the Clinical Teaching Market at the CLEA New Clinicians Conference on Clinical Education in San Francisco, in May. Schaffzin served on the planning committee for the Clinical Teaching Workshop at the Southeastern Association of Law Schools' 2019 Annual Conference in Boca Raton, Fla., in July. During the Workshop, he served as a discussion group presenter “Is Clinical Legal Education the Conscience of the Legal Academy” and moderated a works-in-progress session.

Finally, Schaffzin joined former Memphis Mayor A C Wharton, Memphis Chief Legal Officer Bruce McMullen and Neighborhood Preservation Clinic Co-Director Steve Barlow in presenting a concurrent session entitled “Blight Fighting Strategies” at the International Municipal Lawyers Associations’ 84th Annual Conference in Atlanta, in September.

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Faculty Opinion/Editorial

Vetting the Vote

by Professor Steve Mulroy

Professor Mulroy is the author of the recently published book “Rethinking U.S. Election Law: Unskewing the System” where he describes the most serious shortcomings in elections to federal office in the U.S. and how they can be overcome. He has been on the law faculty since 2000, teaching in the areas of Constitutional Law, Criminal Law, Criminal Procedure, Civil Rights and Election Law. A former civil rights lawyer for the U.S. Justice Department and former federal prosecutor, he tried a number of voting rights cases which went to the Supreme Court.

A

nyone wondering about the 2020 elections must also be wondering how much their vote counts. In 2016, the candidate with fewer national votes won over the candidate with more. In the past three federal elections, the party with the most nationwide votes lost control of the Senate to the party with fewer nationwide votes. And in 2012, the party with a minority of national votes retained a 30-seat majority over the party with the majority of national votes.

These “counter-majoritarian” outcomes reproduce at the state level as well. Depending on the state, they can unfairly help Republicans or Democrats.

Even when the majority party wins a majority, that party usually gets significantly more seats, or fewer seats, than their proportional vote share.

The villain in all these scenarios is our “winnertake-all” election system, where 50.1% of the vote gets 100% of the power. Under that system, running up big supermajorities in individual states (President, Senate) or districts (House) leads to “wasted” votes. But distributing your votes efficiently — getting bare majorities in more states or districts — means you can snatch away the White House, the Senate or the House even if you’re not the most popular alternative.

Political scientists have recognized the potential for such anomalous results for many years. But we inherited the winner-take-all, single-member district system from England, and we’ve stuck with it out of inertia.

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There is a solution, however, which almost every Western democracy has instituted at least partially at the national level: proportional representation (PR). Under PR, 55% of the vote nets roughly 55% of the seats, and 35% of the vote nets, give or take, 35% of the seats. Instead of “winner-take-all,” it’s “majority takes most and minority takes its fair share.”

Under this system, Democrats in Texas and Republicans in New York need not stay home thinking their vote would be futile. They may not control the whole shebang, but if they and their cohorts show up, they can get a seat at the table. Indeed, because a few percentage points increase in a party’s performance could make the difference between, say, 20% versus 30% of the seats, every election is competitive and every voter has an incentive to turn out every time.

Many Western democracies achieve PR with parliamentary systems of government, where people vote for parties rather than candidates.

That’s not the American way. A more American way to achieve PR would be to use ranked choice voting (RCV), where voters can rank their 1st, 2nd and 3rd choice for candidates. That’s how Australians elect their Senate, and it’s worked well for 80 years. Here in the U.S., Minneapolis and Cambridge, Mass., have used a similar system successfully for several decades.

RCV has other advantages as well. It encourages candidates to run positive campaigns and speak to all voters, not just their natural base. It elects majority-supported, consensus candidates with broad support without the trouble expense and historically low turnout of special runoff elections.

That’s why I’ve advocated for it in Memphis, where referendum voters have decisively voted for it in 2008 and 2018.

I’ve studied similar proportional and semiproportional voting systems — cumulative voting, used in corporate elections, and preference voting, described above — for many years. Early on, I wrote about how they have been, and could be used to remedy claims of racial/ethnic minority vote dilution under the Voting Rights Act. More recently, I’ve written a book explaining how they can more generally cure much of what’s ailing our U.S. democracy today — the Electoral College, gerrymandering, hyperpolarization, campaign finance issues and other problems. I spent a sabbatical semester in Australia studying their electoral systems. Space doesn’t permit a full explanation, but suffice it to say that there are innovative, legal, proven electoral reforms which can solve the above problems and more, none of which require a federal constitutional amendment.

Many of these reforms are being used as we speak. As I write this, 15 states and the District of Columbia have joined an interstate compact which could reform the Electoral College in our lifetime. Four states have adopted RCV for Democratic presidential primaries in 2020. And over a dozen cities have adopted RCV, with more cities and states on the way, including Maine, which already uses RCV for all its statewide elections, including U.S. House and Senate.

When you go to vote next year, think about the system we’ve inherited and ask yourself, “Does it really need to be this way?”

Ten Yeas of

2019 Pillars of Excellence Recipients Honorable Robert L. “Butch” Childers (BBA ’71, JD ’74) | Circuit Court Judge | Thirtieth Judicial District, Shelby County (Retired) Honorable Bernice Bouie Donald (BA ’74, JD ’79) | United States Court of Appeals, Sixth Circuit Richard Glassman (BS ’69, JD ’72) | Senior Shareholder | Glassman, Wyatt, Tuttle & Cox, PC R. Hunter Humphreys (JD ’77) Member | Glankler Brown, PLLC Connie Lewis Lensing | Senior Vice President Legal | FedEx Express Charles T. Tuggle Jr. | Executive VP & General Counsel | First Horizon National Corporation

2019 Friends of the Law School The Bobango Family | John A. Bobango (JD ’83) & Lisa W. Bobango (JD ’83)

PRESORTED

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Non-Profit Org

U.S. POSTAGE PAID MEMPHIS, TN

PERMIT NO. 207