Filters and the First Amendment

Abstract:     
Internet content filters -- promising a technological solution to the uniquely social problem of widespread availability of adults-only content on the Internet -- appear to shift the debate over control of "cyberporn" from the legislative to the technical. Yet a growing number of commentators are expressing serious reservations about the free speech implications of filters. In this Article, I note that the ever-changing relationship between technology, network economics, and legal doctrine in the new economic and ideological marketplace of Cyberspace will fundamentally impact any constitutional analysis. I argue that the existing literature's analytic reliance on expansive concepts of state action is ill-founded: both vulnerable to technological and legislative manipulation and finding little doctrinal support. Instead, I outline an approach based on First Amendment theories of association, arguing that this "associative" approach -- supported by current precedent -- is the most promising among several alternatives for providing an adaptive and powerful constitutional framework for evaluating indirect government regulation of the Internet.

Note: This is a description of the article and is not the actual abstract.

Accepted Paper Series