The Supreme Court will bring the highest degree of clarity to the Internet freedom of speech debate if, in ACLU v. Reno, it sets forth the operative metaphor for freedom of speech and applies the metaphor in conjunction with an appropriate analogy for the technology.Part I of this Article discusses judicial decision-making tools with an emphasis on the use of analogy and the importance of applying legal precedents in a manner which is consistent and logical. Part I also discusses the use of metaphor in judicial decisionmaking and illustrates how operative metaphors for free speech have served to provide judges with guiding principles in applying the law. Part II of this Article discusses the use of analogical reasoning in cases involving technological media of communications. It points out that where courts do not analogize new technology to old, they fail in their decisionmaking capacity and therefore create confusing precedent. This Part concludes that, in determining the proper First Amendment treatment of new technologies, courts must apply the operative freedom of speech metaphor as well as determine the correct analogy for the technology. Part III of this Article examines the patchwork of laws which exist in First Amendment cases pertaining to technological media. This Part will explain the use of terms such as “spectrum scarcity” and “pervasiveness” which courts have used to rationalize different levels of governmental intrusion into speech. Part III will also look at the case of Denver Area Educational Technological Consortium v. FCC and argue that it is an illustration of the confusion that is created when courts fail to find technological analogies in free speech cases.Part IV of this Article addresses how courts can best understand the Internet. It lists metaphors which have developed for the Internet and explains how they can be considered by courts to help understand the technology from a user's perspective. Finally, this Part concludes that the Internet is most similar to the printing press for free speech purposes. By recognizing the Internet as similar to the printing press, the courts should feel compelled to permit the least amount of governmental intrusion into content.
Jonathan Wallace and Michael Green, Bridging the Analogy Gap: The Internet, the Printing Press and Freedom of Speech, 20 SEATTLE U. L. REV. 711 (1997).