Traditional Free-Speech Law: Does It Apply on the Internet?

Authors

• A. John Harper III

Abstract

The First Amendment states that Congress "shall make no law . . . abridging the freedom of speech, or of the press." But as Oliver Wendell Holmes recognized, the First Amendment "obviously was not intended to give immunity for every possible use of language." Accordingly, the Supreme Court's free-speech jurisprudence has traditionally been one of line drawing - distinguishing protected from unprotected speech by evaluating its content in light of the medium through which it is expressed. In terms of content, there are generally three categories of speech: "(1) speech that everyone has a right to (political speech, speech about public affairs); (2) speech that no one has a right to (obscene speech, child pornography); and (3) speech that some have a right to but others do not" (speech that adults have a right to but children do not). In terms of the medium of expression, the First Amendment provides more protection for certain locations and certain types of mass media.

This article examines the issues involved in attempting to apply existing free-speech jurisprudence to speech on the Internet - a new kind of medium whose degree of constitutional protection has not yet been firmly established. Section II discusses the ways in which information is stored, transferred, and accessed on the Internet. Section III reviews the Supreme Court's doctrine delineating the various degrees of protection afforded different types of media and concludes that the Internet should receive the highest level of protection. This conclusion means that any content-based restriction on Internet speech must be necessary to serve a compelling state interest, must be narrowly tailored to achieve that end, and must be the least restrictive means of accomplishing the government's interest.

Section IV applies this test to Internet speech, considering statutes regulating pornography and indecent communications. In each case, the article concludes that the anonymity and geographic pervasiveness of the Internet make traditional analysis unsuitable.

Finally, the article examines possible solutions to the problems raised by the application of obscenity statutes and indecency rules, and their associated First Amendment protections, to web-based speech.

Recommended Citation

A. John Harper, Traditional Free-Speech Law: Does It Apply on the Internet?, 6 Computer L. Rev. & Tech. J. 265 (2002)