Free Speech

Author:Anupam Chander & Uyên P. Lê
Position:Professor of Law, University of California, Davis; B.A., Harvard University; J.D., Yale Law School/Free Speech and Technology Fellow, University of California, Davis; B.A., Yale University; J.D., University of California, Davis
Pages:501-549
SUMMARY

When civic engagement is increasingly mediated online, the law regulating cyberspace becomes the law regulating speech. Yet, free speech texts and free speech theorists pay scant attention to the ways that cyberlaw configures the principal mechanism for exercising free speech rights today— communication online. Conversely, while many have long observed that the Internet enables speech, scholars... (see full summary)

 
FREE EXCERPT
501
Free Speech
Anupam Chander
and Uyên P. Lê 
ABSTRACT: When civic engagement is increasingly mediated online, the law
regulating cyberspace becomes the law regulating speech. Yet, free speech texts
and free speech theorists pay scant attention to the ways that cyberlaw
configures the principal mechanism for exercising free speech rights today—
communication online. Conversely, while many have long observed that the
Internet enables speech, scholars have failed to recognize the role that the First
Amendment played in configuring the law of cyberspace. A strong normative
commitment to free speech helped clear the legal hurdles for the development of
history’s most powerful platforms for speech. Because of law, speech became
free—free as in speech, and free as in beer. This is the First Amendment/
Cyberlaw Dialectic: the First Amendment constituted cyberlaw, and cyberlaw,
in turn, constituted free speech.
But this moment of free speech is fragile, threatened by mass electronic
surveillance, mega-trade treaties with ever stricter intellectual property
protections, and criminal copyright law. How we approach such issues will
determine the extent of government censorship, private third-party censorship,
and even self-censorship and sousveillance. The future of free speech hangs
in the balance.
Professor of Law, University of Califor nia, Davis; B.A., Harv ard University; J.D., Yale Law
School.
 Free Speech and Technology Fellow, University of California, Davis; B.A., Yale University;
J.D., University of California, Davis.
We thank Vik Amar, Ashutosh Bhagwat, Ken Bamberger, Alan Brownstein, Michael Froomkin,
Jerry Kang, Carlton Larson, Vincent Polley, Saikrishna Prakash, Derek Slater, Madhavi Sunder,
and William Wang, and the Berkeley law faculty, as well as the participants of a Berkeley law
faculty workshop and Zachary Sanderson and other editors of the Iowa Law Review, for very
helpful comments. We are grateful as well to Alex Macgillivray, then-general counsel of Twitter,
for his insights, and to Google for supporting this work with a Google Research Award. All views
expressed herein are our own and should not be attributed to others.
502 IOWA LAW REVIEW [Vol. 100:501
I. INTRODUCTION ............................................................................. 502
II. MAKING SPEECH FREE ................................................................... 509
A. LIABILITY AND SPEECH ............................................................ 510
B. COPYRIGHT AND CENSORSHIP .................................................. 514
C. PRIVACY AND DISCLOSURE ....................................................... 517
D. THE FREE SPEECH STRUCTURE OF CYBERLAW ........................... 523
III. KEEPING SPEECH FREE ................................................................... 525
A. SOPA STRIKES BACK ............................................................... 525
B. CRIMINAL DOMAINS: MEGAUPLOAD AND ROJADIRECTA ............. 530
C. THE UNITED NATIONS OF CENSORS .......................................... 536
D. EUROPES FORGETTING PILL .................................................... 538
E. WEB 3.0 AND THE INTERNET OF THINGS .................................. 542
F. SURVEILLANCE ........................................................................ 544
IV. CONCLUSION: # ............................................................................. 547
I. INTRODUCTION
“Every freeman has an undoubted right to lay what sentiments he
pleases before the public.”
Then-Judge James Iredell, 17991
“We are the free speech wing of the free speech party.”
Alex Macgillivray, Then-General Counsel, Twitter, 20112
Fifty years ago, the Supreme Court established for the first time that tort
law was subject to the First Amendment.3 The central insight of New York Times
1. Case of Fries, 9 F. Cas. 826, 839 (C.C.D. Pa. 1799) (No. 5126) (quoting 4 WILLIAM
BLACKSTONE, COMMENTARIES *151).
2. Emma Barnett, Twitter Chief: We Will Protect Our Users from Government, TELEGR APH (Oct.
18, 2011, 10:23 AM), http://www.telegraph.co.uk/technology/twitter/8833526/Twitter-chief-
We-will-protect-our-users-from-Government.html.
3. ROBERT M. O’NEIL, THE FIRST AMENDMENT AND CIVIL LIABILITY 13 (2001) (observing
that Sullivan “for the first time . . . [brought] civil sanctions clearly within the scope of First
Amendment protection”); Daniel J. Solove & Neil M. Richards, Rethinking Free Speech and Civil
Liability, 109 COLUM. L. REV. 1650, 1656 (2009) (“For most of American history, private lawsuits
did not implicate the First Amendment, regardless of whether they sought remedies for tort
violations or enforced contracts or property rules.”); L. Lin Wood & Cor ey Fleming Hirokawa,
Shot by the Messenger: Rethinking Media Liability for Violence Induced by Extremely Viole nt Publications
and Broadcasts, 27 N. KY. L. REV. 47, 49 (2000) (“Prior to . . . New York Times [Co.] v. Sullivan, the
2015] FREE SPEECH 503
Co. v. Sullivan was that private claims empowered by the state can undo free
expression.4 But the speech protected in the case that launched the modern
First Amendment5 cost $4800 in 1960.6 Indeed, in his argument to the Court,
Commissioner L.B. Sullivan ridiculed the Times’ claim to be promoting the
“equality of practical enjoyment of the benefits” of free speech and press.7
Justice Brennan, writing for the Court, could only argue that “‘editorial
advertisements’ of this type” at issue in the case allowed “persons who do not
themselves have access to publishing facilities . . . to exercise their freedom of
speech even though they are not members of the press.”8 Still, by turning the
First Amendment’s gaze from direct state regulation of speech to private law,
Sullivan helped usher in an era when speech, powered by the Internet, would
in fact become free—in both senses of the term. Free as in speech, and free as in
beer.9
First Amendment was thought not to prohibit or limit state tort laws that allowed private actions
for damages related to injuries caused by negligent publications.” (footnote omitted)).
4. Sullivan is often heralded for introducing the requirement of malice for any case of libel
against a public official, but its more fundamental innovation was to render private law within the
disciplinary domain of the First Amendment’s free speech and free press clause. N.Y. Times Co.
v. Sullivan, 376 U.S. 254, 291–92 (1964). Such an approach was so new that the Alabama
Supreme Court could have dispatched the New York Times’ constitutional arguments earlier in the
case in merely two sentences—the first stating that the First Amendment did not apply to state
libel, and the second that there was no state action in a private tort claim. See N.Y. Times Co. v.
Sullivan, 144 So. 2d 25, 40 (Ala. 1962).
5. Sullivan has been widely extolled (though largely on other grounds). See Harry Kalven,
Jr., The New York Times Case: A Note on “The Central Meaning of the First Amendment, 1964 SUP. CT.
REV. 191, 208–10 (explaining that the case defined the “central meaning” of the First
Amendment); id. at 221 n.125 (quoting Alexan der Meiklejohn’s statement in response to the
Sullivan decision: “an oc casion for dancing in the streets”); see also L
EE C. BOLLINGER,
UNINHIBITED, ROBUST, AND WIDE-OPEN: A FREE PRESS FOR A NEW CENTURY 14 (2010) (calling
Sullivan “[o]ne of the most important First Amendment decisions in the twentieth century, and
perhaps of all time”); Floyd Abrams, In Memoriam: William J. Brennan, Jr., 111 HARV. L. REV. 18,
21 (1997) (noting Sullivan “is the quintessential First Amendment ruling in our history”);
Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U. CHI. L. REV. 782, 782 (1986)
(calling Sullivan an “epochal case”).
6. Sullivan, 376 U.S. at 260 (noting that a full page advertisement cost $4800). A similar
advertisement today runs between approximately $67,000 and $241,000. N.Y. TIMES, 2014
BUSINESS ADVERTISING RATES 4 (2014), available at http://nytmediakit.com/uploads/rates/14-
0208_2014_Business_RateC_AW5.pdf; see also Jen Chung, Full-Page NY Times Ad with A.O. Scott’s
Tweet Cost $70,000, GOTHAMIST (Jan. 6, 2014, 5:30 PM), http://gothamist.com/2014/01/06/
full-page_ny_times_ad_with_ao_scott.php.
7. Brief for Respondent at 31, Sullivan, 376 U.S. 254 (No. 39), 1963 WL 105892, at *31.
“The Times charged the regular commercial advertising rate of almost five thousand dollars,
scarcely as ‘an important method of promoting some equality of practical enjoyment of the
benefits the First Amendment was intended to secure.’” Id.
8. Sullivan, 376 U.S. at 266.
9. This turns on its head Richard Stallman’s famous aphorism about open source
software—free as in speech, not free as in beer. Jonathan Zittrain, Normative Principles for
Evaluating Free and Proprietary Software, 71 U. CHI. L. REV. 265, 271 (2004) (discussing Stallman’s
description of “free software”).

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