Censorship by Proxy: The First Amendment, Internet Intermediaries, and the Problem of the Weakest Link

Abstract

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors within the chain as proxy censors to control the flow of information. Some commentators have celebrated such indirect methods of governmental control as salutary responses to threatening cyberanarchy. This Article takes a more jaundiced view of these developments: I begin by mapping the ubiquity of efforts to enlist Internet intermediaries as proxy censors. I emphasize the dangers to free expression that are likely to arise from attempts to target weak links in the chain of Internet communications and cast doubt on the claim that market mechanisms can be relied upon to dispel them. I then proceed to explore the doctrinal resources that can meet those dangers. The gambit of enlisting the private sector to establish a system to control expression is not new in the United States. I argue that the First Amendment doctrines developed in response to the last such focused effort, during the McCarthy era, provide a series of useful starting points for a First Amendment doctrine to protect the weak links of the Internet.