The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": A Few Words About the New Media and the First Amendment: Existing Flashpoints
[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]
The proto-infobahn of today—the Internet, bulletin boards, and various commercial services—has already generated quite a few First Amendment controversies. Professor Anne Branscomb has ably summarized many of them in another Essay in this Symposium.
Some of these may only be transplants of conventional questions into a new but essentially similar environment. For instance, there's already a lively debate about the propriety of regulating sexually harassing speech; harassing speech on electronic bulletin boards should just be a special case of this. The mens rea requirements imposed by the Supreme Court on libel actions may be adequate for protecting bulletin board operators from liability for messages whose contents they had no way of knowing. Likewise, the advent of electronic communications may change how child pornography is distributed, but I don't see how it would change the rules relating to child pornography.
Other conflicts, though, may well require changes to existing doctrine, because they reflect ways in which the new media genuinely differ from the old. The law of speech is premised on certain (often unspoken) assumptions about the way the speech market operates. If these assumptions aren't valid for new technologies, the law may have to evolve to reflect the changes.
Newspapers, for instance, are today held strictly liable for copyright infringement; part of the reason for this is that they have broad control over what they choose to print. When this assumption of control fails, as it does for electronic bulletin boards, strict liability may be inappropriate and perhaps even unconstitutional. The courts that developed the strict liability rule might not have consciously thought about this assumption, and it's certainly unlikely that they thought about it in a First Amendment context. In a world where this assumption was false, though, courts could well develop a different rule.
Likewise, as the economic constraints on sending tidal waves of unsolicited mail are removed, legal restrictions may have to take their place. Today such restrictions might be seen as unconstitutional, at least as to noncommercial speech. But if indeed e-mailing is next to free, then the assumption that the "short, though regular, journey from mail box to trash can" is "an acceptable burden, at least so far as the Constitution is concerned" may stop being reasonable.
Similarly, in the obscenity context, the "community standards" test presumes that sellers know to which community they are selling. As computer networks make it possible for people to get obscenity without so much as supplying a mailing address, the very concept of local community standards may become obsolete. Still, all these seem like small changes, ones that don't cast into doubt the basic rules of the First Amendment: The general requirement of content neutrality, the exemption of certain kinds of speech from protection, the lower protection given to commercial speech, and so on.
