The First Amendment and the National Information Infrastructure

Abstract

What the First Amendment status of electronic information should be is a fundamental question which must be addressed in any attempt to arrive at appropriate legal standards to protect the multifarious interests of the users of cyberspace. Yet, despite its importance, the First Amendment has largely been ignored in the debate surrounding what sort of legal framework should control the emerging National Information Infrastructure. Professor Cate surveys the current terrain of First Amendment jurisprudence and describes the different analytical approaches which may be taken. Doctrinal anomalies such as the law of common carriage indicate that at times the courts have reduced the scope of First Amendment protection in the face of new technologies. However, the rationales behind applying diminished protection do not carry force in the electronic context, especially when other controls such as antitrust doctrine are available. There is no reason not to confer full First Amendment protection on speech conveyed by cyberspace.

Keywords: First Amendment, Internet, National Information Infrastructure