Free Speech and the Confluence of National Security and Internet Exceptionalism ©

Abstract

As many scholars have recognized, the Supreme Court has not infrequently skewed free speech doctrine in times of war or heightened concerns, real or perceived, about national security. Many reasons have been suggested for this sort of national security exceptionalism. Courts may be uncomfortable shaping long-standing constitutional rules because they may not have full access to the information on which government decisions are based. There may also be concerns about the courts’ institutional competence. At the same time, courts similarly may feel the need to adjust speech doctrine in reaction to rapid technological advances. Like national security threats, emerging technologies can push courts toward a different kind of exceptionalism, as when claims are made that the internet exacerbates the harms caused by certain forms of expression because such speech can be disseminated both instantaneously and broadly. Such reactions may stem from lack of familiarity or fear of such technologies by legal decision makers. As it happens, the contemporary “war” on terror roughly coincides with the proliferation of easy and speedy electronic means of communication, making this an era in which the free speech doctrine may be particularly vulnerable to the dual pressures of these different forms of exceptionalism. Thus, it is unsurprising that cases such as Brandenburg v. Ohio, itself a doctrinal correction to exaggerated national security concerns from a previous generation, are under great scrutiny as domestic terrorist incidents appear to be on the rise, and organized terrorist groups seem to use social media and other internet communication platforms to expand their network of sympathizers and supporters. In this essay, I argue that the coupling of these two forms of exceptionalism suggest that courts and commentators should be skeptical about calls to adjust the Brandenburg test to narrow the scope of speech protected by its admittedly capacious standard and to tread cautiously before departing from a legal regime that has, in retrospect, been largely successful in distinguishing between actual incitement and other forms of speech that should remain protected.

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