America has begun to censor the Internet. Defying conventional scholarly wisdom that Supreme Court precedent bars Internet censorship, federal and state governments are increasingly using indirect methods to engage in "soft" blocking of online material. This Article assesses these methods and makes a controversial claim: hard censorship, such as the PROTECT IP and Stop Online Piracy Acts, are normatively preferable to indirect restrictions. It introduces a taxonomy of five censorship strategies: direct control, deputizing intermediaries, payment, pretext, and persuasion. It next makes three core claims. First, only one strategy—deputizing intermediaries—is limited significantly by current law. Government retains considerable freedom of action to employ the other methods and has begun to do so. Second, the Article employs a process-based methodology to argue that indirect censorship strategies are less legitimate than direct regulation. Lastly, it proposes using specialized legislation if the United States decides to conduct Internet censorship and sets out key components that a statute must include to be legitimate, with the goal of aligning censorship with prior restraint doctrine. It concludes by assessing how soft Internet censorship affects current scholarly debates over the state's role in shaping information online, sounding a skeptical note about government's potential to balance communication.
Bambauer, Derek E.
University of Chicago Law Review: Vol. 79
, Article 1.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol79/iss3/1