Power Without Responsibility: Intermediaries and the First Amendment, a new article by Rebecca Tushnet to be published in an upcoming issue of the George Washington Law Review, has been posted to SSRN and BePress.
As Jerome Barron recognized in his classic article, the First Amendment rights of speakers and audiences must be evaluated in the contexts of their relationships to larger structures. To the extent that there is a right to speak or a right to hear, who is on the other side of that right? The system of free expression is not atomized, but pervasively structured by conduits such as television broadcasters and Internet service providers (“ISPs”). This article focuses on (potentially) harmful speech as it relates to claims for greater access to those conduits. Any effective proposal for access rights should deal with the recruitment of intermediaries to police and deter unlawful speech and the many and varied ways in which individual speakers will violate existing laws.