[Air-L] law papers on freedom of speech

[Dan L. Burk]

> Hi AoiR peeps,
> If I may bother you with one more request: Do any of you legal types have
> a
> legal paper to recommend on freedom of speech for my Internet Governance
> class? I have a couple at hand but I'm not convinced that they are the
> most
> current ones. As with everything Internet, even last year's paper could be
> sometimes considered to be outdated and with governance you want to
> present
> the latest out there, i think...
>
> I remember a few legal scholars on the list, I just can't remember exactly
> who they were, so apologies for a blanket call like this.
>
> Thank you in advance.
>
> BsB

This is as current as it gets:

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++

"Old School/New School Speech Regulation"
     Harvard Law Review, Forthcoming

  Contact:  JACK M. BALKIN
              Yale University - Law School
    Email:  jack.balkin at yale.edu
Auth-Page:  http://ssrn.com/author=293225

Full Text:  http://ssrn.com/abstract=2377526

ABSTRACT: In the early twenty-first century the digital
infrastructure of communication has also become a central
instrument for speech regulation and surveillance. The same
forces that have democratized and decentralized information
production have also generated new techniques for surveillance
and control of expression.

“Old-school” speech regulation has traditionally relied on
criminal penalties, civil damages, and injunctions directed at
individual speakers and publishers to control and discipline
speech. These methods have hardly disappeared in the twenty-first
century. But now they are joined by “new-school” techniques,
which aim at digital networks and auxiliary services like search
engines, payment systems, and advertisers. For example, states
may engage in collateral censorship by threatening Internet
intermediaries with liability to induce them to block, limit, or
censor speech by other private parties.

Public/private cooperation and co-optation is often crucial to
new-school techniques. Because the government often does not own
the infrastructure of free expression, it must rely on private
owners to assist in speech regulation and surveillance.
Governments may use a combination of carrots and sticks,
including offers of legal immunity in exchange for cooperation.
States may also employ the “soft power” of government influence.
Owners of private infrastructure, hoping to reduce legal
uncertainty and to ensure an uncomplicated business environment,
often have incentives to be helpful even without direct
government threats.

Finally, governments have also devised new forms of digital prior
restraint. Many new-school techniques have effects similar to
prior restraints, even though they may not involve traditional
licensing schemes or judicial injunctions. Prior restraints are
especially important to the expansion of government surveillance
practices in the expanding National Surveillance State. Gag
orders directed at owners of private infrastructure are now
ubiquitous in the United States; they have become fully
normalized and bureaucratized elements of digital surveillance,
as routine as they are invisible, and largely isolated from
traditional first amendment protections.
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Regards, DLB