Protecting Hyperlinks and Preserving First Amendment Values on the Internet

Abstract

Hyperlinks are critical to communication in part because they facilitate access to information. They provide visitors on one website a way to navigate to internally referenced words, phrases, arguments, and ideas. In addition to being vehicles for communication, this article contends that hyperlinks are communicative in and of themselves. They signal user preferences, democratize the national dialogue, indicate credibility, function as a signature on a virtual petition and help establish virtual associations. This Article presents the first comprehensive examination of First Amendment concerns related to hyperlinks and argues that any judicial or legislative regulation of hyperlinks should be reviewed under a strict scrutiny standard. Nearly 50 years ago, the Supreme Court recognized a constitutional privilege to disseminate information in New York Times v. Sullivan. In Sullivan, the Court extended a constitutional privilege to newspapers because of their role as an incredibly important, unique medium of communication. The same sentiment should extend to protect new media as they emerge. This Article concludes by discussing how a strict scrutiny standard should be applied to claims alleging trademark infringement, e-trespass, copyright infringement, contributory infringement, and contract violation as a result of hyperlink use.

Keywords: hyperlinks, First Amendment, constitutional privilege, trademark, e-trespass, copyright, contributory infringement, contract