Recent scholarship has argued that the constitutional guarantee of freedom of the press refers to speech-disseminating technology, such as the printing press, rather than to the institutional press. This Article argues that to protect the free press rights of authors, technological intermediaries such as presses and internet and online service providers must be afforded greater protection than authors for publishing and disseminating sanctionable speech. Unless intermediaries are granted near-complete immunity, the government will be able to censor authors collaterally by threatening to punish intermediaries for authors' speech, forcing intermediaries to restrain what the government cannot directly. Specifically, this Article explores the longstanding, symbiotic relationship between liberty of the press and copyright law, and argues that, even if copyright protections are generally consistent with the Free Speech Clause, they may violate the Free Press Clause when they motivate collateral censorship of non-copyright-infringing speech.
Christina M. Mulligan,
Technological Intermediaries and Freedom of the Press,
SMU L. Rev.