Kill Switches, Forum Doctrine, and the First Amendment's Digital Future
86 Pages Posted: 13 Jul 2013 Last revised: 21 May 2014
Date Written: July 12, 2013
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
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