By: Todd Gardella
The Internet is a relatively new medium of communications, and
its networked, decentralized nature makes it difficult to define
its properties. Regulation of this medium—which relies on its
users to construct the architecture, provide the content, and
organically improve the state-of-the-art—is tricky and potentially
destructive. Yet some regulation may be necessary; the same
properties that make the Internet such a powerful conduit for
progress and the free, unhindered exchange of ideas also make it an
ideal haven from where those who wish to perpetuate terror can
strike. In many ways, the information age is the great
enabler of terrorism, providing not only the channels for
terrorists to communicate amongst themselves throughout the globe,
but also providing them the opportunity to amplify their voices,
spread their messages, and permeate the homes of those plugged into
the modern world of interconnectivity.
While acknowledging the validity of both the distress over free
speech abridgment and the desire to ensure the safety of our nation
and its citizens, this Note seeks to explore whether cyberspace
requires analysis distinct from that which applies to the
traditional free speech areas. Part I of this Note discusses
the enactment of those antiterrorism laws which potentially burden
free speech and whether those laws should be truncated or
expanded. Part II traces the twentieth century evolution of
First Amendment jurisprudence and the application of free speech
principles to the Internet. Part III defends the quick action
taken by Congress to grant authority in an emergency situation, but
qualifies that defense by reinforcing the need for
deliberation. The discussion then shifts to pinpointing the
consideration unique to the Internet and identifies some of the
dangers of broadening authority beyond the scope immediately
necessary to confront the modern threat of terrorism.
The terrorist threat will likely plague society well into the
future. As the war on terrorism perseveres, the stark
realities of an enduring conflict demand, for the sake of
preserving liberty, that lawmakers employ the discipline necessary
to scrutinize the benefits and costs of each grant of authority
that may abridge constitutionally protected liberties. A
necessary component of such examination is the consideration of the
effects such laws may have on the Internet. The Internet is
dependent upon the unbridled exchange of ideas. Ignoring this
reliance may hinder the development of the Internet, which will
ultimately be to the detriment of this nation. As progress
has always been this nation’s credo, freedom has been its
engine. While deciding whether to limit the protections of
free speech, we must give thorough consideration to the cost of a
chill over the Internet.