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Kill Switches, Forum Doctrine, and the First Amendment's Digital Future

86 Pages Posted: 13 Jul 2013 Last revised: 21 May 2014

Enrique Armijo

Elon University School of Law

Date Written: July 12, 2013

Abstract

Governments play an increasing role in providing digital speech spaces. This development has important implications for free expression. The movement of speech from physical public spaces to virtual ones has increased the capacity for State ex ante interference with speech, from targeted blocking of users, websites, and applications to turning off all or parts of communications networks. This Article argues that, contrary to the conclusions of most Speech Clause scholars, First Amendment law's public forum doctrine is ill-equipped to solve these problems, in part because the doctrine underprotects speech that is not made in shared physical space. Rather, when the government carries speech over its networks, it should be treated as a common carrier, barring both user-based and use-based discrimination over those networks. In addition, established First Amendment doctrines such as prior restraint, incitement, and the content-based vs. content-neutral distinction can adequately protect digital speech.

Keywords: First Amendment, Constitutional Law

Suggested Citation

Armijo, Enrique, Kill Switches, Forum Doctrine, and the First Amendment's Digital Future (July 12, 2013). Cardozo Arts & Entertainment Law Journal, Vol. 32, No. 2, 2014; Elon University Law Legal Studies Research Paper No. 2013-08. Available at SSRN: https://ssrn.com/abstract=2293039 or http://dx.doi.org/10.2139/ssrn.2293039

Enrique Armijo (Contact Author)

Elon University School of Law ( email )

201 N. Greene Street
Greensboro, NC 27401
United States
3362799327 (Phone)

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