1st AMDT - Free Speech - Jack Balkin Article on Old School / New School Speech Restraints

Blog entry here.

SSRN paper here.

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.

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[N]ew forms of digital prior restraint now exist: 

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.

From the paper: 

 An early version of Google or Facebook might not have survived a series of defamation lawsuits if either had been treated as the publisher of the countless links, blogs, posts, comments, and updates that appear on their facilities. Both the section 230 immunity and the section 512 safe harbors, however, result from acts of legislation rather than Supreme Court decisions.  And not all countries have speech-protective rules of intermediary liability.

What a system of intermediary immunities and safe harbors does not protect, however, constitutes a system of intermediary liability; and hence, of potential collateral censorship.  Section 512(g) of the DMCA offers companies that host content a safe harbor only if they agree to a notice and takedown scheme. If a private party alleges that the intermediary is hosting content that infringes its copyrights, the intermediary must promptly remove it or risk liability.61 Thus, intermediaries still have incentives to take down content that is protected by fair use and the First Amendment.