Date:         Fri, 25 Oct 1996 14:21:17 -0500
Sender: Legal Scholarship Network <CYBERSPACE-LAW@PUBLISHER.SSRN.COM>
From: Alan Lewine <Alan_R_Lewine@SSRN.COM>
Subject:      CYBERSPACE-LAW #44: Free Speech 5
To: Multiple recipients of list CYBERSPACE-LAW
              <CYBERSPACE-LAW@PUBLISHER.SSRN.COM>

                    CYBERSPACE LAW FOR NON-LAWYERS

                        Topic: Free Speech 5

                (Number 5 of 20 on the topic FREE SPEECH)

                          E-Mail Number: 44

                     Date Posted: 25 October 1996


                      *  *  *  *  *  *  *  *  *


     FREE SPEECH 5:
     GOVERNMENT AS SOVEREIGN AND FULLY PROTECTED SPEECH, PART I

     If speech is fully protected, and the government is acting
     as sovereign, then the main remaining question is whether
     the government is regulating speech *because of its
     content*.

     If the restriction is content-based then it's almost
     certainly unconstitutional.  For instance,

          *    A ban on newsgroup posts that express bigoted
               viewpoints would be unconstitutional:
               Reprehensible as bigoted ideas are, they are
               constitutionally protected.

          *    A ban on Web pages that discuss abortion
               would be unconstitutional.  This is so even
               though the ban applies to all views (both pro
               and anti) on abortion.  Even such "viewpoint-
               neutral" regulations are presumptively
               unconstitutional, so long as they are
               *content*-based.

     And this is true regardless of whether the restriction is
     enforced through *criminal punishment* or through *civil
     liability*.  A law that lets people sue for emotional harm
     inflicted by bigoted Web sites would be as unconstitutional
     as a law imposing criminal punishment on people who put up
     such sites.

     If the restriction is content-neutral -- for instance, a tax
     of 1/100 of a cent per 1000 bytes of e- mail sent, or a ban
     on any person sending more than 100 unsolicited e-mail
     messages a day -- it's probably constitutional, even though
     it does in some way restrict speech.

     Common MYTH:  "Content-based speech restrictions are OK if
     they only restrict the time, place, or manner of speech."
     No; if a restriction is content-based, it's presumptively
     unconstitutional, even if it lets you express your views
     some other way or in some other place or at some other time.
     Thus, a law banning profanity on all newsgroups is
     unconstitutional even though it only restricts the "manner"
     and "place" of expression and doesn't itself ban any ideas.


             * * * * * * * * * * * * * * * * * * * * * *
                              authors:

             Larry Lessig    David Post    Eugene Volokh

             * * * * * * * * * * * * * * * * * * * * * *


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         Yours virtually,
         Alan Lewine
         Cyberspace-Law Listmeister
         Alan_R_Lewine@SSRN.com