Abstract: To determine whether punishing the disclosure of illegally obtained information violates the First Amendment’s guarantee of freedom of speech, the Supreme Court currently applies a public concern test. Previously, the primary example of this conflict was the use of state or federal wiretapping statutes to punish television journalists broadcasting wiretapped conversations. Today, the same statutes may punish individuals distributing similar recordings on the Internet. Because of the increasing importance of online communication and the increasing concern about offline conduct being posted online, an appropriate First Amendment framework must balance the rights of the public to obtain information, the rights of the media to disclose information, and the rights of speakers to determine their audience. The public concern test fails in this endeavor. Instead, courts should balance the right to disclose the recording against the recorded speaker’s right to freedom of association. This approach rejects a dichotomy between public and private as ill-suited to online communication and instead focuses on protecting the rights of speakers to choose their audience. Grounded in the First Amendment’s protection of expressive association and anonymous speech, this Note proposes that the need to protect unpopular or minority viewpoints from unwanted online publicity justifies limits on the dissemination of certain types of recordings.
BCLR Releases Vol. LIV No. 2
Boston College Law Review is pleased to announce the publication of our March 2013 issue. • Jeremy Waldron, Separation of [...]
BCLR Elects New Board of Editors
On March 22, 2013, the membership of the Boston College Law Review elected a new Board of Editors for the [...]
BCLR Editors Win Student Writing Competitions
Two members of the Boston College Law Review‘s Executive Board, Laura Kaplan and Michael Palmisciano, recently won national writing competitions [...]