GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2011

Status

Accepted

Abstract

A growing number of countries censor speech on the Internet-- dictatorships and democracies alike. Free speech advocates deplore this state of affairs and argue for achievement of a worldwide consensus in which all countries accord their citizens nearly unrestricted Internet access. This Utopia of uncensored Internet access is, however, radically different from the current state of affairs and--given the trend toward more, not less, control over Internet access--is not likely to be achieved in the near future. Calls for the rest of the world to adopt the United States’ First Amendment’s version of broad free speech protections are not likely to be heeded, especially since the United States is far from the mainstream of speech protections among democracies. Furthermore, given the extent and technical success of efforts to censor Internet speech throughout the world, free speech Utopians can no longer rest comfortably on the assurance issued by Internet pioneer John Gilmore two decades ago that “the Net interprets censorship as damage and routes around it.” Given that countries in recent years have successfully reined in the Internet and reimposed geographical controls and, with them, the prerogatives of the sovereign upon the formerly untamed, unregulable, and ageographic nature of the Internet, free speech Utopians can no longer rest assured that the “nature of the Internet” itself will combat and resist issues of censorship. For those of us committed to maximizing the potential for a free and open Internet, a different approach is therefore warranted.

Instead of arguing that the world should adopt the First Amendment’s exceptionally broad substantive free speech protections or that an international consensus regarding free speech protections should be reached, in this Article I focus on the particular procedures by which countries censor and argue for the adoption of concrete and specific steps by which these countries should improve their implementation of Internet filtering systems to better achieve their own substantive goals, as well as to achieve more speech-friendly results. While it is to be expected that different countries will adopt different substantive values regarding which Internet speech to restrict (for example, how to define and whether to restrict hate speech, Holocaust denial, pornography, etc.), in restricting such categories of speech, I argue that countries should adhere to important procedural values and stringent procedural constraints (such as those embodied in First Amendment jurisprudence and the Due Process Clause). This strategy for enhancing free speech protections in nations throughout the world has the benefit of likely being palatable to other countries, because it does not require that they forego the prerogative of the sovereign to adopt and implement their own substantive free speech values. Rather, the approach I suggest assumes as its starting point the substantive free speech values adopted by each country, but recommends the adoption of meaningful procedures to safeguard whatever free speech values each country has adopted for its citizens. While I do not contend that countries the world over should implement substantive First Amendment values, I argue that other countries can and should implement procedural First Amendment and Due Process values. Adoption of such procedural First Amendment values would require sharply constraining the “prior restraints” on speech that are embodied in nationwide filtering systems, and implementing meaningful procedural safeguards on any prior restraints imposed, including operating filtering systems in an open and transparent manner that accords affected Internet users notice and an opportunity to respond to--and appeal--speech-restrictive actions.

GW Paper Series

GWU Law School Public Law Research Paper No. 2017-46; GWU Legal Studies Research Paper No. 2017-46

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