Media, Technology, and the First Amendment

The right to free speech is meaningless without spaces to exercise it. Over the past decades, electronic media---broadcast radio and television, cable television, telephony, and the internet---have become critical spaces where Americans speak to and with each other. Today, being able to speak and be heard online is as important as being able to speak in parks, sidewalks, and public squares. As the Supreme Court has recognized, social media platforms "provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard," so that any citizen may "become a town crier with a voice that resonates farther than it could from any soapbox." Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). But while the public squares of the colonies were public spaces, the social media platforms hosting much of Americans' online speech today are owned by private actors with their own First Amendment rights. And court decisions about electronic media differ significantly from the precedents governing leaflets, pickets, soapboxes, and flag burning that dominated the twentieth century. This class complements the law school's general First Amendment class by focusing on precedents governing speech on electronic media (broadcast, cable, telephony, and the internet) and what they mean for free speech in the digital age. The answer is hotly debated by policy makers, scholars, and courts. As Justice Alito noted in his recent dissent when the Supreme Court put Texas' social media law back on hold, "It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies." In this course, we will take on that thorny task. We will grapple with questions such as: Why can comedians swear on Netflix or cable TV, but not on broadcast TV? Can politicians or government officials block Americans from their Twitter or Facebook accounts? Do internet platforms such as Facebook, Twitter, or YouTube violate their users' First Amendment rights when they take down or restrict access to content? And how does the First Amendment affect attempts to regulate internet platforms such as Texas' and Florida's social media laws? Who should take this class: If you are interested in the First Amendment, constitutional issues, appellate litigation, media and technology law, communications law, net neutrality, the increasing power of internet platforms, or simply use the internet, this class is for you. There are no prerequisites for this class. You can take it before or after the general First Amendment class. The class is open to first year law students and graduate students from other schools. To apply for this course, non-Law students must complete a Non-Law Student Add Request Form available on the SLS Registrar's Office website (see Non-Law Students). Elements used in grading: Class participation, attendance, homework practice problems, end-of-class quiz.