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This response essay reflects on the meaning of two foundational First Amendment decisions: New York Times Co. v. Sullivan — characterized by Harry Kalven, Jr., as “an occasion for dancing in the streets”— which imposed limits on public officials’ recovery for defamation, and New York Times Co. v. United States, which reaffirmed the central First Amendment principle against prior restraints. Professor Jack Balkin characterizes these decisions as responses to “old-school speech regulation . . . [in which] the state had used penalties and injunctions directed at speakers and publishers in order to control and discipline their speech.” But, Balkin observes, changes in the infrastructure and technology of free expression and in the regulation of speech have significantly weakened the impact of these decisions. He claims that “new-school” speech regulation — government exercise of informal control over and co-optation of privately-owned digital infrastructure providers — is not meaningfully subject to these precedents. Balkin expresses particular concern about the inefficacy of the prior restraint doctrine in circumstances of collateral censorship, in which the government encourages private intermediaries like ISPs to censor the speech of others. Such instances of collateral censorship, he worries, will effect an end run around the traditional procedural safeguards imposed on prior restraints. Balkin also expresses concern about the government’s co-optation of private infrastructure providers, through which the government informally pressures these entities to restrict users’ privacy and freedom of expression.

In this response essay, I contend first that the prior restraint doctrine reinforced by the Court in New York Times Co. v. United States is still effective in holding in check new-school regulation — at least outside the national security context — as evidenced by cases such as Center for Democracy and Technology v. Pappert. Second, I argue, Balkin’s concerns about government co-optation of private infrastructure providers should be partially allayed by steps these providers have taken to expose efforts by the government to co-opt them and to commit themselves to upholding First Amendment principles, and to transparency and visibility in responding to government requests to censor content or reveal user information. In sum, the prior restraint doctrine — at least outside of the national security context — is still effective in holding in check government efforts to restrict speech. And recent actions by the entities responsible for the Internet’s free speech infrastructure have trended toward transparency and against co-optation by the government. These developments give us reason to be optimistic about the continued relevance of First Amendment precedent and values in the era of new-school regulation.

GW Paper Series

GWU Law School Public Law Research Paper No. 2017-44; GWU Legal Studies Research Paper No. 2017-44

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