The Electronic First Amendment: An Essay for the New Age

The Yale Law Journal, 1995

2015

Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and government security interests felt more acutely than within the context of the Fourth Amendment.Notwithstanding the long duration of this struggle, jurisprudentially, the nation is at a critical point. Traditionally, the touchstone for analyzing the boundaries of Fourth Amendment searches is reasonableness. Quite literally, the...

An essay included in a special report examining the First Amendment and the media. The report was published by the Center for First Amendment studies at California State University, Long Beach.

Review of Atlas of AI: Power, Politics, and the Planetary Costs of Artificial Intelligence, Kate Crawford (Yale University Press: 2021).

Advances in Media, Entertainment, and the Arts

This chapter defines terms of the digital age as they relate to digital media literacy. The changing landscape of society is demonstrated through the recalibration occurring in media processes and the cultural forms they generate. These conditions have fostered cultural paradigms unique to the digital age: paradigms aligned with either humanistic or capitalist perspectives, and marketing playing a role with respect to this tension. An analysis of two policies in the form of new curricula reveals that more must be done to prepare, protect, and empower a digitally literate citizenry. The chapter closes with an argument that the first step in this direction must involve both establishing digital media literacy as a discipline as well as deepening and extending current media literacy frameworks.

The internet brings together, within a single vehicle, both the right to obtain as well as the right to express and broadcast information, opinions and ideas in various forms including writing, imagery, audio and video. 2 It provides the world with a comparatively inexpensive, accessible, "easy-entry way of sharing information and ideas," and facilitates freedom of expression by making information easily accessible. The internet has also seen to it that news is communicated across borders within seconds, businesses and companies carry out transactions with their clients online, 4 and its efficiency has seen it overtake traditional media as a means of conveying information. 5 1 Image available at

On July 2, 2012, Verizon filed a brief with the United States Court of Appeals, District of Columbia Circuit, stating that the open-network, anti-discrimination rules adopted by the Federal Communications Commission “violate[d] the First Amendment by stripping [Verizon] of control over the transmission of speech on [its] network.” Verizon argued that its broadband network was its “microphone” and its “newspaper,” and in doing so essentially claimed the online communications of some 200 million Americans as its own. This article provides a constitutional response to Verizon. It describes how U.S. First Amendment and communications law has evolved to a point where Verizon’s argument is possible, and compares U.S. law with network speech jurisprudence from a different but related constitutional culture. The First Amendment, while understood as a “free speech” protection, is not infrequently just the opposite -- either missing in action, or applied in a way to lessen the amount of speech, information, and opinion available to the public. One reason for this is that Courts have typically focused on its “government shall make no law” language rather than the “freedom of speech” phrase at the end of the First Amendment. The German post-war constitution (the Grundgesetz or Basic Law), by contrast, incorporates a more affirmative idea of free speech, built on the ashes of a dictatorship that misused mass communications before and during World War II. The German Constitutional Court, seeking to break with the past, has read the Basic Law’s speech article (Article 5) to guarantee the “institutional freedom” of broadcasting and the press, and to protect speech and information-transfer as dynamic processes. Article 5 protects individual speech as the First Amendment does, but also requires the state to safeguard the opinion and information-transfer functions of electronic media, as a condition precedent to democracy. This is a slightly edited version of the article that appeared at 36:1 Hastings International & Comparative Law Review 145 (2013). Keywords: net neutrality, comparative constitutional law, electronic networks, free speech, telecommunications, information, common carriage, common carrier, First Amendment, Internet protocol, Brand X, Red Lion, German, Constitutional Court, Habermas, monopoly, competition Suggested Citation: Witteman, Christopher, Information Freedom, A Constitutional Value for the 21st Century (January 15, 2013). Hastings International and Comparative Law Review, Vol. 36:1, No. 145, 2013. Available at SSRN: https://ssrn.com/abstract=2218076

2011

Forthcoming Chapter in the Oxford Handbook on American Politics. This article discusses the evolution of U.S. civil rights and civil liberties through the lens of Supreme Court decisions. It traces the evolution of negative rights against the state and positive liberties from 19th century property rights decisions through early 21st century decisions regarding same sex marriage. It also traces the shift in the Court’s approach to rights cases from one in which the state is regarded as a threat to individual rights to one in which the state plays a complex role of balancing rights claims. As well, the article demonstrates that rights claims and cases have become more complex as notions of “the public interest” become more contested when the pursuit of general interests has a disproportionate on the interests of particular social groups.

Digital Enlightenment Yearbook 2014, 2014

This is the introduction to the third Digital Enlightenment Yearbook, published by the Digital Enlightenment Forum (http://www.digitalenlightenment.org/), which aims to shed light on today’s rapid technological changes and their impact on society and its governance, taking inspiration from Enlightenment thought as well as from the many transformations and evolutions that have taken place since. This year the focus of the Yearbook is “social networks and social machines, surveillance and empowerment.” In what is now the well-established tradition of the Yearbooks, different stakeholders in society and various disciplinary communities (technology, law, philosophy, sociology, economics, policymaking) bring their very different opinions and perspectives to bear on this topic, forming a basis for inspiring and constructive cross-disciplinary discussions.