Testing the Limits of the First Amendment: How a CFAA Prohibition on Online Antidiscrimination Testing Infringes on Protected Speech Activity

Abstract

This Note assesses freedom of speech and expression claims with regard to online antidiscrimination testing conduct and argues that, in light of past precedent related to protected conduct, false speech, investigative journalism, and the tradition of testers in civil rights enforcement, the First Amendment’s protections extend to antidiscrimination testing. Therefore, application of the CFAA to antidiscrimination testers engaging in online testing activity infringes upon the First Amendment by preventing constitutionally protected conduct. This Note does not dwell upon related issues that may be posed by litigation for First Amendment protection. Its focus is limited to the substantive question of whether antidiscrimination testing, specifically online testing, is a type of conduct that the First Amendment reaches.

Keywords: First Amendment, Online Antidiscrimination Testing, CFAA, Sandvig v. Sessions