Inherently Dangerous: The Potential for an Internet-Specific Standard Restricting Speech that Performs a Teaching Function
60 Pages Posted: 26 Mar 2008
Date Written: 2005
Our country has a long and somewhat disquieting history of confronting perceived threats to our political system with laws that muffle voices of dissent, particularly during times of war and great social or economic change. Until the late 1960s, the jurisprudence of language associated with violence and crime reflected this tendency, permitting the restriction of voices that we found dangerous, disruptive, threatening, and even unpatriotic. Then, in perhaps our greatest moment of unrest - at the height of the Civil Rights movement and the Vietnam war - the Supreme Court embraced sweeping protections for the voices of dissent, even those who, in their advocacy, invoked the specter of illegal conduct and violence as a means of achieving social change. In the decades that followed, as America's status in the world grew apparently more dominant and secure, the Court reaffirmed its tolerance for such expression. Our courts, and indeed the people, subsequently embraced the marketplace of ideas that flourishes in the absence of these restraints. But now our tolerance runs thin.
Real or not, we perceive the convergence of several dangers - the physical threat of terrorism, both foreign and domestic; the economic threat of recession, corporate scandal, and globalization; and the social threat of new technology that connects, informs, exposes, and overwhelms us. At this moment, certain First Amendment protections are ripe for circumscription. The question, then, is whether our constitutional right of free speech is relative and conditional. The populist answer is yes. The legal answer is much more complicated.
To that end, this Article carries three goals. The first is to highlight parallel signals from the three branches of government suggesting that dangerous instructional speech will no longer be tolerated or constitutionally protected. The legislative branch has recently criminalized speech that is understood to promote criminal activity by teaching or demonstrating its methods. The executive branch undertook the first prosecution under this recent statute and instituted new investigative guidelines and procedures designed to aid enforcement of these provisions. Finally, the judicial branch recently signaled its willingness to consider exempting instructional speech from full constitutional protection.
Building on this last point, the second goal of this Article is to establish that the Supreme Court may be poised to announce a new theory of lesser constitutional protection for dangerous instructional speech. Here, I suggest that the Court will likely explicitly limit the scope of Brandenburg v. Ohio, distinguishing and exempting speech that, through its capacity to perform a teaching function, creates the abstract potential for violence. In its place the Court seems inclined to adopt a derivative of the public danger doctrine more akin in application, albeit unintentionally, to a discredited analysis used primarily to sanction political censorship of the Socialist Party in the 1920s and of the Communist Party in the 1950s. Brandenburg's imminence requirement is eliminated as applied to certain types of instructional speech under this approach. The question of public danger, both as a matter of doctrine and proof, will become a function of the speech itself and the context of its distribution. Intent, a question of fact, may be consumed by the scope of the public-danger analysis.
The third and final goal of this Article is to demonstrate that this public-danger derivative will, in application, create a de facto Internet-specific standard, incorporating standards of likelihood and intent that are easily subsumed by the very nature of the network and that will tend to affirm content-based regulation of disfavored online speech that performs a teaching function.
The likelihood of such an outcome is both real and profoundly troubling. The ideal of freedom that lies at the heart of open Internet architecture is intended to secure and promote expression. Yet, the derivative public-danger doctrine that I envision would turn this ideal on its head. Decentralization, data neutrality, immediate and unlimited access, anonymity - the very core of the Internet - would themselves create the pretext of danger, and thus the foundation for curtailing expression. An analytical framework that one might find acceptable in the offline world would create near self-validating restrictions on instructional speech when applied online.
Keywords: constitutional law, first amendment, internet, dangerous speech, instructional speech, brandenburg
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