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Cardozo Arts & Entertainment Law Journal

Abstract

Governments play a growing role in providing access to digital speech spaces. This development has important consequences for free expression. Communication's migration from physical public spaces to virtual ones has increased the State's capacity for ex ante interference with speech, from targeted blocking of users, websites, and applications on its communications networks to shutting off access to those networks altogether. Contrary to the conclusions of most Speech Clause scholars, the First Amendment's public forum doctrine is ill equipped to solve these problems, in part because the doctrine under-protects speech that is not expressed in shared physical space. Accordingly, this Article proposes a different path for applying the First Amendment to State provided speech spaces: When a government transmits user speech over its networks, it should give that speech common carrier-type treatment, and both use-based and user-based discrimination over those networks should be presumptively barred. In addition, established doctrines such as prior restraint, incitement, and content neutrality can resolve any questions concerning digital speech in virtual public space.

There is also the problem of contract law. Like any network service provider, municipalities place terms of use-based obligations on users as a condition of access to their networks, including waiver of government liability for disconnection or other denials of access. These waivers implicate the unconstitutional conditions doctrine. If the State must, as a First Amendment matter, carry the traffic of any willing user on its network subject to certain narrow content and viewpoint-neutral exceptions, it cannot then ask prospective users to waive that right as a precondition to carriage. By demanding waiver of suit for any disconnection as a prerequisite to speak, these terms of service provisions condition receipt of a government benefit upon acceptance of a prior restraint.

Disciplines

Communications Law | Entertainment, Arts, and Sports Law | First Amendment | Law | Science and Technology Law

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