Assessing the Legitimacy of Governmental Regulation of Modern Speech Aimed at Social Reform: The Importance of Hindsight and Causation

When governmental regulation or punishment of speech occurs subsequent to the speech itself, such regulation is conducted with the benefit of hindsight. This is important because hindsight enables us to discern whether the expression in question has caused any legally cognizable harm. When speech is responsible for such a harm, its punishment is justfied by this causal connection. Yet conversely, when we know that speech is consequence-free, its ex post punishment is conceptually indefensible. In the first part of this article, Mr. Brown criticizes the imminent lawless action standard articulated in Brandenburg v. Ohio for failing to embrace fully this straightforward proposition. Importantly, however, the emergence of the Internet has clouded the application of this concept. E-communication enables a speaker to reach audiences of previously unattainable size, and to do so with unprecedented instantaneousness. In the second Part of this Article, Mr. Brown argues that contemporary First Amendment jurisprudence - and specifically the opinion of the United States Court of Appeals for the Ninth Circuit in Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists -fails to incorporate a realistic view of causation in the Internet age. He concludes that although the ex post regulation of consequence-free speech is illegitimate, we should be reticent, in the context of Internet speech, to dismiss the causative role of such expression without first affording this connection close scrutiny