First Amendment Commons^™

Is The First Amendment Obsolete?, Tim Wu

Michigan Law Review

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on the weaponization …

Forward Into The Past: Speech Intermediaries In Television And Internet Ages Symposium: Falsehoods, Fake News, And The First Amendment: Panel 3: The Brave New World Of Free Speech, Gregory P. Magarian

Scholarship@WashULaw

Communication constructs society. By speaking to, with, and among one another, people and groups build relationships that allow us all to live more fully, understand the world better, and govern ourselves collectively. As societies grow, expression and engagement become more challenging. The presence of more ideas, larger and more diverse potential audiences, and more powerful and remote institutions threatens to reduce communication to a futile exercise. Whatever normative goals different people and groups may want public discourse to serve, pursuing those goals gets harder.

Unmasking The Teen Cyberbully: A First Amendment-Compliant Approach To Protecting Child Victims Of Anonymous, School-Related Internet Harassment, Benjamin A. Holden

Akron Law Review

In proposing a new rule under the First Amendment to adjudicate anonymous Cyberbullying cases, this Article first reviews and summarizes the First Amendment precedents governing regulation of speech by minors and student speech in the school environment. Second, it reviews and discusses the prevalence of minors’ online harassment or Cyberbullying, including pre-litigation disputes reported in the press. Third, it reviews and summarizes the First Amendment precedents governing the “unmasking” of anonymous speakers. Finally, the Cyberbully Unmasking Test is proposed and applied.

Censorship On The Internet: Who Should Make The Rules, Joe Zopolsky

Oklahoma Journal of Law and Technology

No abstract provided.

Courthouses, Bookshelves, And Portals: The Implications Of U.S. V. American Library Association On First Amendment Forum Analysis And Future Internet-Based Litigation Strategies, Alexandra R. Harrington

Oklahoma Journal of Law and Technology

No abstract provided.

Amend The Communications Decency Act To Protect Victims Of Sexual Exploitation, Samantha Vardaman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

The Freedom From Sexploitation Agenda: Policy And Legislative Recommendations To Curb Sexual Exploitation, Dawn Hawkins

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Denial Of Harm: Sex Trafficking, Backpage, And Free Speech Absolutism, Jody Raphael

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Session On "Geoblocking Tools And The Law" At Law, Borders, And Speech Conference At Stanford Law School, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble appeared on a panel at the Law, Borders, and Speech Conference hosted by The Center for Internet and Society at Stanford Law School on October 24, 2016. The session defined and discussed geoblocking and its implications for internet users, government, and private companies.

A video of the session is available here. Additionally, Professor Trimble's presentation is available here.

The “Sovereigns Of Cyberspace” And State Action: The First Amendment’S Application (Or Lack Thereof) To Third-Party Platforms, Jonathan Peters

Scholarly Works

Many scholars have commented that the state action doctrine forecloses use of the First Amendment to constrain the policies and practices of online service providers. But few have comprehensively studied this issue, and the seminal article exploring “[c]yberspace and the [s]tate [a]ction [d]ebate” is fifteen years old, published before the U.S. Supreme Court reformulated the federal approach to state action. It is important to give the state action doctrine regular scholarly attention, not least because it is increasingly clear that “the private sector has a shared responsibility to help safeguard free expression.” It is critical to understand whether the First …

Fighting Back Against Revenge Porn: A Legislative Solution, Alex Jacobs

Northwestern Journal of Law & Social Policy

No abstract provided.

Punishing Sexual Fantasy, Andrew Gilden

William & Mary Law Review

The Internet has created unprecedented opportunities for adults and teenagers to explore their sexual identities, but it has also created new ways for the law to monitor and punish a diverse range of taboo sexual communication. A young mother loses custody of her two children due to sexually explicit Facebook conversations. A teenager is prosecuted for child pornography crimes after sending a naked selfie to her teenage boyfriend. An NYPD officer is convicted for conspiracy to kidnap several women based on conversations he had on a “dark fetish” fantasy website. In each of these cases, online sexual exploration and fantasy …

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

The Freedom To Film Pornography, Marc J. Randazza

Nevada Law Journal

No abstract provided.

Prosecuting Online Threats After Elonis, Michael Pierce

Northwestern University Law Review

In Elonis v. United States, decided last term, the Supreme Court vacated a conviction for online threats on the ground that the lower court erred in its instructions to the jury regarding mens rea. In doing so, however, the Court declined to articulate which mens rea standard would have sustained a conviction. It is thus currently uncertain which mens rea the government must prove when prosecuting online threats under 18 U.S.C. § 875(c). The Elonis Court discussed three potential mens rea standards; as universal standards for online threats, each leaves something to be desired. Fortunately, federal courts need not …

Elonis V. United States: The Need To Uphold Individual Rights To Free Speech While Protecting Victims Of Online True Threats, Alison J. Best

Maryland Law Review

No abstract provided.

Incitement, Threats, And Constitutional Guarantees: First Amendment Protections Pre- And Post-Elonis, Mark Strasser

The University of New Hampshire Law Review

[Excerpt] "While the First Amendment to the United States Constitution protects the freedom of expression, individuals issuing threats or advocating illegal conduct may be subject to punishment. What constitutes proscribable speech has long been evolving, and the recent jurisprudence suggests that First Amendment protections are more robust for advocacy of illegal conduct than for threats. Elonis v. United States provided the Court with a golden opportunity to clarify First Amendment threat jurisprudence; however, those hoping for an illuminating analysis cannot help but be disappointed. Part I of this Article discusses the developing First Amendment jurisprudence regarding the regulation of incitement, …

The 'Press,' Then & Now, Sonja R. West

Scholarly Works

Does the First Amendment’s protection of freedom of “the press” simply mean that we all have the right to use mass communication technology to disseminate our speech? Or does it provide constitutional safeguards for a particular group of speakers who function as government watchdogs and citizen surrogates? This question defines the current debate over the Press Clause. The Supreme Court’s Citizens United decision, along with recent work by Michael McConnell and Eugene Volokh, suggests the answer is the former. This article pushes back on that view.

It starts by expanding the scope of the relevant historical evidence. Discussions about the …

Don’T Tread On Me…Online: The Fec Should Stay Out Of Free Internet-Based Political Speech, Timothy J. D’Elia

Catholic University Journal of Law and Technology

No abstract provided.

Cyberspace: The Final Frontier, For Regulation?, Jay Krasovec

Akron Law Review

This article will discuss the concept of anonymity on the Internet and argue for its protection. Part II provides background information on the Internet and illustrates the prominence the Internet has in today's global society. Part III discusses the concept of anonymity and its importance in our daily communications and how these principles necessarily extend to online communication. Part IV outlines the purported justifications for regulating Internet content, which is followed by Part V discussing current and attempted regulations of the Internet. This article then argues for the full protection of online anonymous speech as mandated by fundamental principles of …

Www.Obscenity.Com: An Analysis Of Obscenity And Indecency Regulation Of The Internet, Kelly M. Doherty

Akron Law Review

This comment explores the constitutionality of federal regulations as applied to Internet content and alternatives to government regulation. Part II provides background on the Internet, First Amendment obscenity and indecency law as applied to communications media, and past and current legislation enacted to regulate Internet content. Part III analyzes the constitutionality of COPA, and discusses why other alternatives are more effective and preferable to government regulation. Part IV concludes that protecting children from harmful Internet content is the responsibility of parents, and therefore, Internet regulation should begin at home.

United States V. American Library Association: The Choice Between Cash And Constitutional Rights, Barbara A. Sanchez

Akron Law Review

This Note discusses the possibility that the Court, in its eagerness to protect children, twisted established First Amendment doctrines to uphold CIPA and declined to address other legal issues that weaken CIPA’s constitutionality. Part II provides a historical background of previous legislation attempting to protect children accessing the Internet, explains what CIPA is and compares it to previous legislation, and also discusses current filtering technology and its limitations. Part III provides a statement of the facts, including the procedural history of the case. Part IV analyzes the Court’s confusing and inconsistent application of firmly established rules dealing with Congress’ spending …

Social Justice, Social Norms And The Governance Of Social Media, Tal Z. Zarsky

Pace Law Review

This article proceeds as follows: Part II briefly addresses the theoretical arguments regarding the pros and cons of various governance strategies, focusing on the advantages, disadvantages and pitfalls of reliance on private parties. In Part III, the article describes, in general terms, the above-mentioned empirical study, explaining its methodology, the specific challenges to its design and implementation, and how these were met. The discussion specifically centers on a survey taken to establish the nature of social norms. Part IV presents a specific test case: whether pseudonymity should be permitted in social media or should “real names” be mandatory. Part V …

Internet Exceptionalism: An Overview From General Constitutional Law, Mark Tushnet

William & Mary Law Review

This Article considers First Amendment Internet exceptionalism. I use that term in what I think is a reasonably standard way to refer to the question of whether the technological characteristics of the Internet (and, more generally, twenty-first-century information technologies) justify treating regulation of information dissemination through the Internet differently from regulation of such dissemination through nineteenth- and twentieth-century media, such as print, radio, and television. My aim here is not to provide an answer to that question, but to identify several subquestions whose answers must be part of the larger answer.

A New Taxonomy For Online Harms, Kate Klonick

Faculty Publications

(Excerpt)

Bullying is generally understood among academics and educators as having to meet three criteria: (1) it must be verbal or physical aggression; (2) it must be repeated over time; and (3) it must involve a power differential. When talking about cyber bullying, the aggression is mostly verbal, using “threats, blackmail. . . gossip and rumors” and online personas or messages can be more cruel, vindictive and mean. Though cyber bullying typically describes acts between children, the same acts by adults could also be considered cyber harassment. Unlike harassment, however, bullying does not have a history of criminal liability—though all …

2003-2004 Supreme Court Term: Another Losing Season For The First Amendment, Joel M. Gora

Touro Law Review

No abstract provided.

How Much Spam Can Can-Spam Can?: Evaluating The Effectiveness Of The Can-Spam Act In The Wake Of White Buffalo Ventures V. University Of Texas, Fay Katayama

Touro Law Review

No abstract provided.

The Basic Logic Of Post-Tinker Jurisprudence, R. George Wright

Cardozo Law Review de•novo

Tinker v. Des Moines Independent Community School District is rightly regarded as a landmark student speech case. At this point, however, it is fair and important to ask about the likely consequences of radically abandoning Tinker and the succeeding case law. What might it mean, at this historical point, to abandon Tinker along with its qualifying and limiting cases? The discussion briefly pursues this question and endorses a radical abandonment of Tinker and the succeeding cases as binding case law.

Tollbooths And Newsstands On The Information Superhighway, Brad A. Greenberg

Michigan Telecommunications & Technology Law Review

Countering the perception that speech limitations affecting distribution necessarily reduce access to information, this Essay proffers that copyright expansions actually can increase access and thereby serve important copyright and First Amendment values. In doing so, this discussion contributes to the growing literature and two recent Supreme Court opinions discussing whether copyright law and First Amendment interests can coexist.

When The Classroom Is Not In The Schoolhouse: Applying Tinker To Student Speech At Online Schools, Brett T. Macintyre

Seattle University Law Review

Despite the overwhelming increase in students’ Internet use and the growing popularity of online public schools, the United States Supreme Court has never addressed how, or if, schools can discipline students for disruptive online speech without violating the students’ First Amendment rights. What the Supreme Court has addressed is how school administrators can constitutionally discipline students within traditional schools. In a landmark decision, Tinker v. Des Moines Independent Community School District, the Supreme Court announced the now famous principle that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Still, the Court …