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 Moves to # 25 in Law Journal Rankings
The Boston College Law Review has moved from #26 to #25 in the annual Washington and Lee University School of Law Law […]
Alumni-Student Happy Hour, February 19
Dear BCLR Alumni, I am pleased to announce that the Boston College Law Review will be hosting its Alumni-Student Happy […]
2014 E. Supp. Now Available
We have begun posting case comments from recent federal appellate decisions to our 2014 E. Supp., which can be found […]