Way back in the spring of 2018, Mark Zuckerberg, the CEO of Facebook, was brought before Congress to answer a wide array of questions regarding some important aspects of his company's operation. Back then, a lot of folks believed that Donald Trump "stole" the 2016 presidential election from Hillary Clinton and that he "colluded with," or at least had help from, the Russians in doing so. One widespread theory was that Russian cyber-agents created "fake" ads that appeared on social mediaincluding Facebook. These "fake" ads contained "disinformation" designed to sway unsuspecting voters in the U.S. It was claimed that the individuals running these ads used sophisticated algorithms to discern the psychological predilections of specific groups of votersindeed, even specific individual voters (the algorithms were said to be that good!)so that those predilections could be subtly manipulated to cause voters to (unconsciously, of course) support Trump when those voters otherwise would have supported the more "rational" arguments of candidate Hillary Clinton. This was scary stuff. It was mind control through fake news on social media.

Of course, even if it were true that Russian cyber-agents were generating fake ads on social media sites like Facebook during the 2016 election cycleand that probablyistruefor those ads to have the effect desired by those nefarious Russians, the folks who viewed those ads would have needed to be less than discerning about the "news" they were consuming. And, of course, the theory assumed just that. It assumed that the yokels in rural Pennsylvaniathe very folks that Barack Obama once famously said "cling to guns or religion" out of frustration that their lives are going nowheredidn't have the first clue about what was really going on in their world. But the previously mentioned theory also assumed that millennials and Gen Z voters (roughly, voters under the age of 34), were unsophisticated consumers of the news that they increasingly got from social media sites like Facebook.

The situation looked dire. So our lawmakers in Washington, who are concerned about Americans, or at least about keeping their jobswhich may not be the same thingsprang into action. A flurry of legislation was proposed to deal with this problem. As of this writing, none of the proposed bills designed to solve the problem of fake news on social media have become law. But the wheels of Washington grind slowly. Many bills are, at least technically, still within the realm of consideration. Old bills never die. They fall out of consideration, but they sometimes come back into consideration, depending upon who is in power in Washington.

One such bill that was seriously considered in 2018 was something called the Honest Ads Act. Although it never quite got the traction it needed to become law, it enjoyed significant bipartisan support from Senators like Democrat Amy Klobuchar and the late Senator John McCain, who was a Republican from Arizona. Very briefly, this bill would have required any social media site with over fifty million users to verify and keep records of the identity of individuals or groups that placed advertisements on the site, if those advertisements were political in nature. Advertisements, especially those of a "political nature" are speech. Therefore, it seems obvious that Facebook and other companies that run social media sites are involved in nothing but disseminating speech.

Although they have yet to pass the Honest Ads Act, I want you to assume that the government passed a law similar to the one discussed above: a law requiring all social media sites with over fifty million users to verify and keep records of the identity of individuals or groups that place advertisements on their site, if those advertisements are political in nature.

Now suppose this law were challenged on First Amendment grounds. Suppose a social media site like Facebook claimed that the law violated its freedom of speech by placing undue burdens on that speechlike the burden of determining the identity of speakers it was allowing on its site. And suppose advertisers challenged this law for any number of reasons, including that it burdened their speech by preventing them from speaking about political matters anonymously. I wonder how an individual, like the late Justice Antonin Scalia, who was committed to "originalism" as a method of constitutional interpretation, would view this law and its relationship to the First Amendment. Obviously, when the First Amendment was ratified in 1791, there was no internet, there were no social media sites, and there was no electronic communication of any type. But there was communication taking place between humans in all sorts of other ways and there was politics and there was advertising.

Focus specifically on the late Justice Scalia's version of "originalism." You are responsible for several readings in this unit. One reading is from a chapter of my book on Justice Scalia. In that chapter, which is titled "Textualism as a Response to the 'Living' Constitution," I survey various different approaches to constitutional interpretation, including several specific versions of what has come to be called "originalism." Don't get confused: different versions of "originalism" differ in some very important ways. I also gave you an essay Dr. Eric Gander wrote, titled "The Joy of Textualism." That essay sets forth what Dr. Gander believes is the version of "originalism" embraced by the late Justice Scalia. So, it is Justice Scalia's understanding of originalism and constitutional interpretation that I want you to focus on in this question because, even though Justice Scalia no longer sits on the Court, his thinking about originalism continues to influence constitutional interpretation and legal decision-making today.

1.When an originalist, of the type embodied by the late Justice Scalia, looks at any provision of the constitutionincluding an amendment, like the First Amendmentwhat are they attempting to determine about that provision or amendment?

2. what types of questions would an originalist like Justice Scalia ask?

3. what would differentiate the approach of an originalist like Justice Scalia from that of Justice Breyer or someone else committed to the view that the constitution is a "living" document? Here, you can draw on my analysis of what it means for a federal judge to embrace the view embodied by the idea of the "living constitution