Environmental Information Access as a Security Risk

The United Sates was founded on the principles of freedom. Events in recent history have threatened the freedoms we as individuals enjoy. Notably, changes to government legislation and policies regarding access to environmentally sensitive information following September 11, 2001, are troubling. The government has struggled with a difficult balancing act. The public has the right of access to information, yet, information some view as sensitive or dangerous must be kept out of the hands of terrorists. This project examines and discusses the information access debate within the United States and how to best provide the public environmentally sensitive information.

Identity Entrepreneurs

In my previous article Racial Capitalism, I examined the ways in which white individuals and predominantly white institutions derive value from non-white racial identity. This process flows from our intense social and legal preoccupation with diversity. And it results in the commodification of non-white racial identity, with negative implications for both individuals and society. This Article picks up where Racial Capitalism left off in three ways. As a foundation, it first expands the concept of racial capitalism to identity categories more generally, explaining that individual in-group members and predominantly in-group institutions — usually individuals or institutions that are white, male, straight, wealthy, and so on — can and do derive value from out-group identities. Second, the Article turns from the overarching system of identity capitalism to the myriad ways that individual out-group members actively participate in that system. In particular, I examine how out-group members leverage their out-group status to derive social and economic value for themselves. I call such out-group participants identity entrepreneurs. Identity entrepreneurship is neither inherently good nor inherently bad. Rather, it is a complicated phenomenon with both positive and negative consequences. Finally, the Article considers the appropriate response to identity entrepreneurship. We should design laws and policies to maximize both individual agency and access to information for out-group members. Such reforms would protect individual choice while making clear the consequences of identity entrepreneurship both for individual identity entrepreneurs and for the out-group as a whole. A range of legal doctrines interact with and influence identity entrepreneurship, including employment discrimination under Title VII, rights of privacy and publicity, and intellectual property. Modifying these doctrines to take account of identity entrepreneurship will further progress toward an egalitarian society in which in-group and out-group identities are valued equally.

High Value Lies, Ugly Truths, and the First Amendment

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies – such as perjury or pretending to be a police officer – are not covered by the First Amendment. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). To date, however, both Supreme Court doctrine and academic commentary has taken for granted that any constitutional protection for lies is purely prophylactic – it protects the liar to avoid chilling truthful speech. This Article is the first to argue, contrary to conventional wisdom, that certain types of lies paradoxically advance the values underlying the First Amendment. Our framework is descriptively novel and doctrinally important insofar as we provide the first comprehensive post-Alvarez look at the wide range of lies that may raise First Amendment issues. Because there was no majority opinion in Alvarez, there is uncertainty about which standard of constitutional scrutiny should apply to protected lies, an issue we examine at length. Moreover, our normative claim is straightforward: when a lie has intrinsic or instrumental value it should be treated differently from other types of lies and warrant the greatest constitutional protection. Specifically, we argue that investigative deceptions – lies used to secure truthful factual information about matters of public concern – deserve the utmost constitutional protection because they advance the underling purposes of free speech: they enhance political discourse, help reveal the truth, and promote individual autonomy. A prototypical investigative deception is the sort of misrepresentation required in order for an undercover journalist, investigator, or activist to gain access to information or images of great political significance that would not be available if the investigator disclosed her reporting or political objectives. Tactical use of such lies have a long history in American journalism and activism, from Upton Sinclair to his modern day heirs. Using the proliferation of anti-whistleblower statutes like Ag Gag laws as an illustrative example, we argue that investigative deceptions are a category of high value lies that ought to receive rigorous protection under the First Amendment. At the same time, we recognize that not all lies are alike and that in other areas, the government regulation of lies serves legitimate interests. We therefore conclude the Article by drawing some limiting principles to our theory.