100 Iowa L. Rev. 501 (2015)

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Abstract

When civic engagement is increasingly mediated online, the law regulating cyberspace becomes the law regulating speech. Yet, free speech texts and free speech theorists pay scant attention to the ways that cyberlaw configures the principal mechanism for exercising free speech rights today— communication online. Conversely, while many have long observed that the Internet enables speech, scholars have failed to recognize the role that the First Amendment played in configuring the law of cyberspace. A strong normative commitment to free speech helped clear the legal hurdles for the development of history’s most powerful platforms for speech. Because of law, speech became free—free as in speech, and free as in beer. This is the First Amendment/ Cyberlaw Dialectic: the First Amendment constituted cyberlaw, and cyberlaw, in turn, constituted free speech.

But this moment of free speech is fragile, threatened by mass electronic surveillance, mega-trade treaties with ever stricter intellectual property protections, and criminal copyright law. How we approach such issues will determine the extent of government censorship, private third-party censorship, and even self-censorship and sousveillance. The future of free speech hangs in the balance.