The Doctrinal Toll of 'Information as Speech'

56 Pages Posted: 10 Nov 2015 Last revised: 5 Aug 2018

See all articles by Kyle Langvardt

Kyle Langvardt

University of Detroit Mercy - School of Law

Date Written: October 15, 2015

Abstract

The courts over the past two decades have reached a near-consensus that computer code, along with virtually every flow of data on the Internet, is “speech” for First Amendment purposes. Today, newer information technologies such as 3D printing, synthetic biology, and digital currencies promise to remake whole other spheres of non-expressive economic activity in the Internet's image. The rush to claim First Amendment protections for these non-expressive but code-dependent technologies has already begun with a lawsuit claiming First Amendment privileges for the Internet distribution of 3D-printable guns. Many similar suits will surely follow, all pursuing the common dream of a future-shocked Lochner for a highly-informatized and thoroughly-deregulated economy.

This Article argues that the theory of these lawsuits poses little genuine risk to the regulatory state. Instead, the threat is to the clarity and strength of core First Amendment principles. In theory, courts will test regulations of technologies such as digital currencies under the same strict standards that define mainstream First Amendment doctrine. But pragmatic concerns about the government's ability to regulate economic affairs will put pressure on the same courts to dilute those standards in practice. Over time, these diluted strains will find their way back to the mainstream of First Amendment litigation. The Article concludes with recommendations to mitigate the damage.

Keywords: Constitutional law, First Amendment, technology, 3D printing, Bitcoin, Synthetic biology, the Singularity, Lochner

Suggested Citation

Langvardt, Kyle, The Doctrinal Toll of 'Information as Speech' (October 15, 2015). Loyola University Chicago Law Journal, Vol. 47, 2015. Available at SSRN: https://ssrn.com/abstract=2674634

Kyle Langvardt (Contact Author)

University of Detroit Mercy - School of Law ( email )

651 East Jefferson Avenue
Detroit, MI 48226
United States

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