Friday, June 15, 2012
Jorge R. Roig, Charleston School of Law, is publishing Decoding First Amendment Coverage in the Age of Youtube, Facebook and the Arab Spring in the NYU Annual Survey of American Law. Here is the abstract.
Computer source code is the lifeblood of the Internet. It is also the brick and mortar of cyberspace itself. As such, it has been argued that the degree of control that a government can wield over code can be a most powerful tool for controlling the development of new technologies. With the advent and dramatic proliferation in the Internet of social networking media and platforms for the publication and sharing of user-generated content, the ability of individuals across the world to communicate and share ideas with each other has reached truly revolutionary dimensions.
The influence of Facebook in the popular revolutions of the Arab Spring has been well documented. The use of YouTube in the 2008 U.S. Presidential campaign has also left its indelible mark in the political landscape. These and other new platforms have allowed millions of individuals to unleash their artistic and creative potentials. The ability of people to learn more about the nature of their surroundings, and the world at large, through the use of such tools as Google Earth, has allowed entire populations to reconsider their places in the world. And the combination of smartphones and Twitter has created new tactics for protests and redefined the way in which individuals can assemble to petition their government for a redress of grievances.
In this context, the question of how source code may be regulated by the government takes on particular urgency. Hence, it seems especially timely to reconsider the issue of whether computer source code is “speech” for First Amendment purposes. Furthermore, the question of First Amendment coverage, in this context, seems well suited to a discussion of First Amendment values. In this article, I propose a three-step framework for analyzing questions of First Amendment coverage in a manner consistent with Supreme Court doctrine. In applying this framework to computer source code, I attempt to explore the interrelation between the different values that the Court and commentators have ascribed to the First Amendment, and to reach some insights regarding the speech-conduct distinction and the question of First Amendment coverage in general.
Download the article from SSRN at the link.