Chapman Law Review


This is not the first essay declaring that the Internet is revolutionary. For scholars, the Internet has enabled unparalleled access to information from all over the globe; it has permitted what were previously impossible collaborations; and it has even led to further evolution of the medium. New developments include social media, artificial intelligence, crypto-currency, and more. The Internet’s major “platforms” like Facebook, Google, Apple, Microsoft, and others have even become the robber barons of our age. They are drawing scrutiny from both the U.S. Congress and states regarding how they are changing society, our children, business, and even warfare. The Internet also played an important and innovative role in keeping us linked to each other during a pandemic. Yet things are actually more complicated. This Essay argues that the Internet has had a surprisingly unimportant effect on free speech doctrine. If anything, it has helped lock down the Supreme Court’s libertarian categorical approach to the First Amendment, which is rather unique internationally.

Part I of this Essay will initially highlight three questionable Supreme Court speech cases that demonstrate this libertarian tact. Part II will discuss two questionable internet speech cases which follow the formula. Indeed, they may be even more awkward than the brick and mortar cases. The Essay’s conclusion is that the Court should become less libertarian in all of these areas, and should follow the approach taken in many Western democracies of proportionality analysis or a type of balancing.



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