Regulating Speech Online

March 22

The Internet has the potential to revolutionize public discourse. It is a profoundly democratizing force. Instead of large media companies and corporate advertisers controlling the channels of speech, anyone with an Internet connection can "become a town crier with a voice that resonates farther than it could from any soapbox." Reno v. ACLU, 521 U.S. 884, 896-97 (1997). Internet speakers can reach vast audiences of readers, viewers, researchers, and buyers that stretch across real space borders, or they can concentrate on niche audiences that share a common interest or geographical location. What's more, with the rise of web 2.0, speech on the Internet has truly become a conversation, with different voices and viewpoints mingling together to create a single "work."

With this great potential, however, comes new questions. What happens when anyone can publish to a national (and global) audience with virtually no oversight? How can a society protect its children from porn and its inboxes from spam? Does defamation law apply to online publishers in the same way it applied to newspapers and other traditional print publications? Is online anonymity part of a noble tradition in political discourse stretching back to the founding fathers or the electronic equivalent of graffiti on the bathroom wall? In this class, we will look at how law and social norms are struggling to adapt to this new electronic terrain.

Readings

• Communications Decency Act § 230
• Larger Threat is Seen in Google Case NYT
• David Margolick, "Slimed Online," Portfolio.com, February 11, 2009, read all
• John Palfrey and Adam Thierer, "Dialogue: The Future of Online Obscenity and Social Networks," Ars Technica, March 5, 2009, read all

Optional Readings

• Wikipedia on Reno v. ACLU.
• ACLU v. Gonzales, 478 F.Supp2d 775 (E.D.Pa. 2007), read pp. 1-7, 61-74, 82-83; skim pp. 74-81.
• Lawrence Lessig, Code 2.0, Chapter 12: Free Speech
• David Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act (Parts I & II)
• David Ardia, Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law (Part III)