Proactive Legislation and the First Amendment

Abstract:     
Some commentators have responded to the rapidly developing world of telecommunications, and particularly the Internet, by arguing that the government should act proactively ? before a harm has arisen, so that the government can push developments along the appropriate path. Such regulations will often affect speech interests and thus should, and will, be subject to rigorous First Amendment scrutiny. Commentators have thus far largely ignored, however, the question of how First Amendment scrutiny should apply to such proactive legislation. This article addresses that issue, finding that First Amendment principles dictate a presumption against legislation that is based on predictive harms. After discussing the basis for this presumption, I consider when the presumption might be overcome, concluding that a likelihood of irreparable harm would defeat it. The article then examines whether courts should defer to legislative predictions of such harm. I find that a principle of redundancy is appropriate, such that courts should not defer to legislative findings of a likelihood of irreparable harm and instead should make independent determinations.

JEL Classifications: K23, K10

Accepted Paper Series