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Free Speech on the Internet -Focusing on the U.S. Law-

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2014, 2(2), pp.29-52
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

Kim Sung Jin 1

1중원대학교

ABSTRACT

The First Amendment of the U.S. Constitution states that Congress shall make no law abridging the freedom of speech. Internet has destroyed concepts of time and space, so it has provided new forum of free speech. Many commentators initially thought that the Internet would promote the free speech value in the First Amendment. However, the Internet has not improved the free speech value today rather eroded its value. Individuals enjoy their strong free speech rights in the public forum, but not in the Internet space since private entities such as Internet service providers (ISPs) control the cyber space without checking under the First Amendment scrutiny. Even though ISPs significantly infringed free speech right on the Internet space, neither the courts nor Congress have looked seriously upon speech limitations imposed by ISPs. Courts have rejected challenge to ISPs' speech control because such actors are neither state actors nor the functional equivalent of state actors under First Amendment. Moreover, Congress has positively encouraged ISPs to control Internet speech which can be protected expression under First Amendment. Thus, through Term of Service, ISPs can exercise their discretion to restrict users' expression on the Internet regardless of the First Amendment scrutiny. To improve free speech right on the Internet space, public forum values should incorporate into Internet since the public forum doctrine is the very important concept to promote free speech value in real world. In addition, states should construe free speech clauses in their own constitutions to grant their citizens the free speech right in private forums that are the functionally equivalent to traditional public forums. The courts and Congress should seriously consider the free speech infringement problem caused by private actors on the Internet space to maintain fundamental constitutional protections.

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