Fear of Freedom: The New Speech Regulation in Cyberspace

Abstract

This article is a brief consideration of the ways in which the development of the Internet challenges existing categories of First Amendment free speech jurisprudence. The new avenues for speech made possible by the Internet call into question many of these conflicting doctrines that define modern First Amendment free speech jurisprudence. Speech in cyberspace casts doubt upon the content and viewpoint-protective First Amendment doctrines, because to many government regulators (though not yet many judges) the broad and unfiltered access to "bad" speech over the Internet creates a much greater risk that speech can facilitate antisocial, and even illegal, conduct in ways that would not have been possible even a decade ago. Conversely, the ethereal nature of the Internet - which is both everywhere and nowhere - renders obsolete many of the Court's old rationales for regulating speech. Concepts of speech regulation that are premised on the need to protect a local community's moral atmosphere seem like relics of a bygone age in a time when everyone with a telephone line has immediate access to the latest artistic, political, scientific, social, and sexual attitudes and expression. Likewise, concepts of speech regulation that are premised on the need to protect public spaces from noise, litter, or unruly crowds have very little logical application to a medium that by design does not occupy a firmly situated physical space. This article discusses the application of some of these doctrines in cyberspace and considers whether the further development of the new medium will likely lead to more or less speech-protective First Amendment doctrine.