The zombie First Amendment. - Free Online Library (2024)

TABLE OF CONTENTSINTRODUCTIONI. ATTACK OF THE FREE SPEECH ZOMBIES A. Speech Interests Follow Ownership of the Means of Communication B. Speech Is Property C. Proprietary Information Processing Is Speech D. Proprietary Information Can Be ContrabandII. SUBCONSTITUTIONAL SETTLEMENTS: POWER AND PRIVILEGE IN THE INFORMATION ECONOMY A. Corporate Citizens in the Marketplace B. Industrial Copyright C. The Biopolitical Public Domain D. Circuit Breakers in the NetCONCLUSION

INTRODUCTION

Scholarly and popular critiques of contemporary free speechjurisprudence have noted an attitude of unquestioning deference to thepolitical power of money. Rather than sheltering the ability to speaktruth to power, they have lamented, the contemporary First Amendmentshelters power's ability to make and propagate its own truth. ThisArticle relates developments in recent First Amendment jurisprudence toa larger struggle now underway to shape the distribution of informationpower in the era of informational capitalism. In particular, it arguesthat cases about political speech--cases that lie at the FirstAmendment's traditional core--tell only a small part of the story.The contemporary First Amendment must be situated within a larger storyabout the realignment of information flows within circuits of power thatserve emerging global interests, and to tell that story, one must lookto disputes about the speech implications of private economicregulation. As a result of that struggle, free speech jurisprudenceabout information rights and harms is becoming what is best described asa zombie free speech jurisprudence: a body of doctrine robbed of itsanimating spirit of expressive equality and enslaved in the service ofeconomic power. (1) Within the emerging zombie free speechjurisprudence, speech, money, and information processing are equivalent,and speech advancing economic interests receives the strongestprotection of all.

Part I discusses a group of seemingly disparate cases about thecontours of the contemporary First Amendment, identifying two commonthemes. First, the cases construct a broad equivalence between speechand money that is heavily influenced by notions of information asproperty or otherwise proprietary. Second, the idea of information asproperty or otherwise proprietary supports actions defining flows ofunauthorized speech as contraband. Part II argues that First Amendmentdecisions do not create distributional inequities in information power;they are symptoms of it. It explores the genealogy of the contemporarycrop of free speech zombies, tracing their origins to deeperrealignments in the legal regimes that more directly constitute andreinforce private economic power. First Amendment jurisprudence has yetto acknowledge these realignments, and that failure of recognition isboth intellectual and moral. Even so, the First Amendment cannot serveas law's primary tool for rebalancing freedom of expression in theinformation age.

I. ATTACK OF THE FREE SPEECH ZOMBIES

For the last decade or so, scholars of information and technologylaw have been puzzling over an unusual set of First Amendment decisions.Those decisions include Eldred v. Ashcroft and Golan u. Holder, both ofwhich rejected challenges to legislative expansions of copyrightprotection, and Sorrell v. IMS Health Inc., which struck down a Vermontlaw restricting use of information about physicians' prescribingbehavior for marketing purposes. (2) Critics of Eldred and Golan havecharacterized those decisions as examples of a pernicious"copyright exceptionalism" within free speech jurisprudencethat operates to insulate copyright legislation almost entirely fromconstitutional challenge. (3) Meanwhile, information privacy scholarsidentify a different kind of exceptionalism at work in Sorrell'sanalysis of the threshold conditions for strict scrutiny, and worry thatSorrell signals trouble ahead both for efforts to strengthen privacyprotection and more generally for the regulatory state's ability toaddress information harms. (4)

I think that the diagnosis of the likely consequences of Eldred,Golan, and Sorrell is right but that the charge of exceptionalism isprobably wrong. Copyright's free speech jurisprudence and theemerging free speech jurisprudence of targeted marketing are part of abroader realignment in free speech jurisprudence, in which the FirstAmendment's traditional concern with political self-determinationplays very little role. Instead, the decisions are infused with theneoliberal tropes of economic liberty and consumerist participation, andthe label "speech" has become a fig leaf strategicallydeployed to denote and legitimize proprietary claims over the patternsof information flow. That process is producing a zombie free speechjurisprudence, in which the identification of protected speech interestsconforms mindlessly to patterns of underlying entitlement, and throughwhich the object of protection is altered almost beyond recognition.

A. Speech Interests Follow Ownership of the Means of Communication

It is useful to begin in traditional First Amendment territory, bybriefly considering the Court's cases on political speech and mediaownership as harbingers of realignment in free speech jurisprudence. Themost prominent of the recent cases is Citizens United v. FEC, in which amajority of the Court struck down a provision of the Bipartisan CampaignReform Act of 2002 that prohibited corporations and unions from usingtheir general treasury funds for independent expenditures supporting oropposing political candidates for federal government office. (5) TheCitizens United decision has been analyzed at length by others far moreexpert in the intricacies of First Amendment doctrine. For my purposes,two aspects of the decision are worth remarking: the majority'sinvocation of media companies as stand-ins for the rights ofcorporations generally, and its refusal to countenance the possibilityof a constitutionally supportable distinction between electioneeringstatements and other types of expression.

The aspect of the Citizens United decision that has sparked themost popular controversy is the majority's characterization ofcorporations and other fictional persons as speakers entitled toconstitutional protection. For many scholarly commentators, however,that result was clearly presaged by earlier cases. (6) In particular,the Court's decisions about media ownership and access reveal aconsistent tradition of treating owners of capital as the bearers ofFirst Amendment interests. (7)

Even so, the discussion of the rights of corporate speakers isnoteworthy for its focus on the rights of media companies, which wereexempted from the independent expenditure ban. For the majority thatexemption, intended to save the independent expenditure restrictionsfrom the risk of unconstitutionality, proved too much: media companiesare in the business of using their money to fund speech, but othercompanies also had a constitutional right to do so. (8) At the sametime, however, the majority opinion observed that media companies arethe paradigmatic corporate bearers of free speech rights:

 There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. Yet television networks and major newspapers owned by media corporations have become the most important means of mass communications in modern times. (9)

That way of thinking about the special status of media companies,though, conflates two different First Amendment freedoms. If mediacompanies have a special place in the constitutional firmament, it isbecause as a group they operate platforms for expression that enable adiverse variety of speakers to fulfill the First Amendment'spromise of a robust marketplace of ideas. By performing what NeilNetanel in a related context has called a structural function, theyoperationalize the guarantee of freedom of the press. (10) TheCourt's misperception of this point has deep roots. In the line ofcases upholding the FCC's imposition of rules intended to createroom within the mid-twentieth-century broadcasting ecology for opposingviewpoints, the FCC argued that control of the means of communicationwould enable owners of mass media organs to determine what sorts ofspeech to allow. (11) According to the FCC, in other words, the problemwas precisely that control of the means of communication and capacityfor constitutionally protected speech are distinct, necessitatingvarious corrective measures to minimize the influence of the former onthe latter. (12) The Court, however, treated the media companies asspeakers in their own right, subject to limitations justified forreasons of scarcity, not for reasons of control. (13) In doing so, itlumped speech and press freedoms together, with potentially deleteriousconsequences for the exercise of both. That result is old news now; whatis interesting is the way that Citizens United reaffirms it. Theinvocation of media companies as the paradigmatic example of corporatefreedom of speech signals that the ultimate touchstone of expressivefreedom is ownership of the means of communication. One who ownsresources has the means to speak; one who owns the means ofcommunication may speak most fully and completely.

The Court had the opportunity to avoid ruling on theconstitutionality of the independent expenditure ban on the ground thatthe speech at issue, a full length documentary film available only viavideo on demand, was meaningfully different than the sort of speech withwhich the federal election laws are concerned. (14) It declined to doso, reasoning that it would be too dangerous to involve the courts indetermining what is favored speech. (15) As others have noted, thatconclusion in turn rests on the more general and highly dubiousproposition that spending and speaking are so closely entwined thatregulation of one is equivalent to regulation of the other, whatever thecontext. (16) Facially, the Citizens United majority's adoption ofboth positions exemplifies the traditional preference for avoidingslippery slopes in free speech cases. But both the lumping ofinformation flows and the underlying lumping of spending with speakingare symptoms of a deeper methodological problem in First Amendmentjurisprudence that demands more careful consideration. In theinformation era, refusal to distinguish among kinds of information flowand among the roles that different entities play in facilitating itspells trouble. Digital conduct--whether by individuals or by for-profitcorporations--can cause extraordinary harm and entrench extraordinaryprivilege. Such conduct is informational in character, originating asbits and moving via information networks. If every regulation ofinformation flows must survive First Amendment scrutiny, meaningfulgovernance becomes increasingly difficult--and, paradoxically, so doesmeaningful protection of expressive liberty. (17)

At a moment in history when information power has become paramount,Citizens United conflated speech rights with ownership of the means ofcommunication and demonstrated an ordinary but pernicious analyticalreductionism about speech and speaking. As we will see in the balance ofthis Section, refusal to examine the connections between information andpower has allowed different kinds of distinctions to creep into the caselaw largely unacknowledged. For propertarian and statist reasons, it hassuited the Court to accept that money, information processing, andspeech are all simply interchangeable pieces in the same game.

B. Speech Is Property

If expressive freedom accrues as a function of ownership of themeans of communication, is the converse also true? Is speech property,and if so, what consequences flow from that characterization? Legaldisputes about intellectual property supply answers to those questions.Such disputes increasingly involve First Amendment issues, and bothFirst Amendment challenges to copyright legislation and First Amendmentdefenses to copyright and para-copyright claims fail almost all thetime. Eldred v. Ashcroft and Golan v. Holder explain why, holding thatlaws retrospectively extending copyright terms and resurrecting lapsedforeign copyrights from the public domain required no special freespeech scrutiny because there is no right to make other people'sspeeches. (18) In other words, claims about the speech-restrictiveeffects of copyright-related legislation fail because the subject matterof the speech is someone else's property. That result is sensible,the Court explained, because copyright itself performs a First Amendmentfunction, incentivizing participation in the marketplace of ideas. (19)

Property rights are not absolute, of course, and neither arecopyrights. In particular, as the Eldred and Golan majority opinionsexplained, the idea-expression distinction excludes certain subjectmatters from the scope of copyright protection and the fair use doctrinecreates a privilege to use copyright-protected material in certaincirc*mstances. (20) The Court refused, however, to look beyondcopyright's internal limitations to consider the broader structuraleffects of legislation expanding the proprietary footprint of thecopyright regime. Instead, it adopted a posture of deference, rulingthat Congress has nearly unlimited leeway to legislate on copyrights andcopyright-related matters as long as it leaves copyright's"traditional contours" undisturbed. (21) And because copyrightit*elf performs a First Amendment function, courts consideringinfringement claims brought by private litigants rarely will bejustified in invoking the First Amendment to shelter conduct that fairuse does not reach. (22) To the contrary, because the bearer of freespeech rights has the right not to speak, rightholders are doublyjustified in blocking undesired uses of their works. (23)

There are two problems here. First, as many have remarked,audiences have speech interests too. From the perspective of copyrightpolicy, the fiction of a public domain of unprotected, precopyrightbuilding blocks ignores the way people interact with culture, and thefair use doctrine does not cure this problem because it does noteffectively counterbalance the broad control of derivative works thatcopyright law gives to rightholders. (24) From the perspective of speechpolicy, copying can serve valuable expressive purposes. (25) Speechinterests also can be affected adversely by large structural changes,such as the creation of paracopyright entitlements that impede useraccess to creative works or changes to copyright duration designed toslow passage into the public domain of important pieces of our commoncultural heritage. (26)

The second problem brings us back by a different route to thelumping problem raised in the previous Section. Creative works are thesubject matter of copyright, to be sure, and if for-profit corporationsare First Amendment speakers then their trademarks are the subjects ofcertain proprietary or quasi-proprietary rights also, but thespeech-equals-property syllogism utterly fails to describe the nature ofan intellectual property owner's speech interest. For an individualauthor, a creative work may be a personal statement, in which case it isnot simply property, but rather a result of situated inspiration andcreative practice. (27) A creative work may become simply property whenthe copyright is assigned to a production intermediary such as apublisher or film production company, but from the perspective of theintermediary, it is no longer a personal statement to which a speechinterest might attach. A trademark is more closely analogous to apersonal statement, but if so--as we will see below--it is areputational statement of the sort that the First Amendmenttraditionally has declined to protect against critique. If corporateintellectual property owners have speech interests, those interests aremore like those of media companies: they are interests that flow fromthe ownership of capital and its provision to fund production, culturalor otherwise. A rule privileging copyright interests over the speechinterests of nonowners, regardless of how the regime defining ownershipmight expand in length and breadth, ignores these differences.

C. Proprietary Information Processing Is Speech

If spending on information is speaking and speech is property, whatshould be the fate of attempted legal restrictions on marketplacemessages? For almost two centuries, the First Amendment was consideredlargely irrelevant to regulation of speech advancing commercial andprofessional activities because such regulation was understood to bedirected fundamentally at commerce rather than at discourse in thepublic sphere. That began to change in the late twentieth century withthe emergence of a line of cases that has become known as theCourt's commercial speech jurisprudence and that concerned attemptsto regulate more complex messages by corporate and professionalspeakers. (28) In Central Hudson Gas & Electric Corp. v. PublicService Commission, the Court purported to advance a definitive test forassessing the validity of laws regulating commercial speech: regulationof speech that is neither misleading nor related to unlawful activitymust advance a substantial government interest, and must beappropriately tailored to that interest. (29) In the ensuing years, theCourt seemed concerned chiefly with fleshing out the application ofCentral Hudson and policing the boundary that defined which sorts ofspeech qualified as commercial speech. It resisted juxtaposing thecommercial speech inquiry, which presumed some prior act of selection ofthe speech to be regulated, with the line of cases holding that lawsdiscriminating among speakers based on their identity or the content oftheir speech must survive strict scrutiny. (30)

That resistance came to an end in Sorrell v. IMS Health Inc., inwhich a majority of the Court ruled that a Vermont statute prohibitingpharmaceutical companies' use of prescriber-identifying informationfor marketing purposes must survive strict scrutiny because therestriction was both content- and speaker-based. (31) Because regimes ofcommercial speech regulation typically begin with some definition ofscope that involves one or both distinctions, Sorrell suggests thatlegislatures and agencies seeking to impose regulatory burdens oninformation-era commerce must proceed with caution when drawing lines.(32) That result, moreover, places regulators neatly on the horns of adilemma: broad proscriptions on information processing seem likely tofail on narrow-tailoring grounds, but narrowly targeted privacyprotections risk being invalidated as impermissibly discriminatory.Almost as an afterthought, the majority opinion continued the practiceof lumping kinds of information flow, agreeing that constitutionalprotection for speech extended to information-processing activitiesintended to improve the targeting of likely prospects to whom commercialspeech might be directed. (33)

Opponents of information privacy regulation have attempted to paintSorrell as an information privacy case, (34) but the majority saw it asa case about market manipulation through persuasion. The drug detailingprogram at issue used information about the past behaviors ofprescribing physicians, not of patients, and the state's assertedinterests were primarily fiscal. Because pharmaceutical detailing isdesigned to increase demand for proprietary drugs, the state feared thatgiving detailers carte blanche to conduct data mining operations in thestate's prescription drug database would drive up the cost of itsMedicaid prescription drug program. (35) That fear weighed importantlyin the Court's eventual conclusion that the privacy concernsadduced in the appellate record and in the state's briefs weremakeweights. (36) Instead, the majority framed the Vermont law as anattempt to undermine the persuasiveness of pharmaceuticalmarketers' speech. (37) So framed, the law conflicted with themarketplace-of-ideas philosophy that animates free speech jurisprudence:protection for persuasion lies at the core of the zone that the FirstAmendment protects.

Yet to call Sorrell a case about persuasion is to insist (again) onboth the conflation of spending and speaking and the impossibility ofmaking meaningful distinctions among kinds of speech-related activities.Particularly in an era when both money and speech increasingly havebecome dematerialized, existing only as bits that flow over the network,it may make good technical sense to classify anything that createsmeaning as speech. That result is consistent with an understanding ofinformation that is derived from cybernetics and based on thedistinction between signal and noise, but it makes much less sense froma constitutional perspective, which is concerned--or ought to be--withthe creation of meaning. (38) Detailing is different from persuasionalong a critical dimension that has to do with transparency andmanipulation. Its operative principle is the nudge rather than thereasoned comparison among alternatives, and its point is surplusextraction, pure and simple. Its goal is to minimize the need topersuade by targeting directly those potential customers most stronglypredisposed to buy and appealing to everything that is known about thosecustomers' habits and predilections. With the pronouncement thatoperations directed at surplus extraction are privileged as speech, thezombification of First Amendment law takes an important additional stepaway from protection for information as expression and toward protectionfor information as competitive advantage.

More generally, the backward-looking lawyerly exercise ofevaluating new commercial speech cases for their consistency withCentral Hudson and its progeny gets the commercial speech problemprecisely wrong. Central Hudson and its ilk are better understood asforerunners of a mature jurisprudence about the First Amendmentimplications of regulatory oversight of commercial informationprocessing activities in the information age. The First Amendmentantiregulatory agenda that began with arguments developed in law reviewarticles and strategy sessions at libertarian think tanks also hasmatured. (39) What began as a trickle of cases raising First Amendmentchallenges to regulations concerning information-related activities inregulated markets has become a steady stream of opinions on a widevariety of subjects--food and drug labeling requirements, disclosurerequirements for securities issuers, permissible uses of consumerinformation, and so on. (40) From this perspective, moreover, it is nocoincidence that the Court's commercial speech jurisprudence hasdeveloped alongside its cases about the free speech rights ofcorporations generally. Both developments reflect an economic reality inwhich information has increasingly become untethered from industrialproduction to become a source of value in its own right, and in whichpowerful interests that profit from information-related activities havesystematically resisted regulatory oversight.

The real question posed in Sorrell was one that the majority didnot recognize: how commercial speech jurisprudence for the era ofinformational capitalism ought to respond to such efforts. A signalvictory for the First Amendment antiregulatory strategy, Sorrellportends wholesale constitutionalization of entire sectors of commercialactivity and a broad and enduring marginalization of regulatoryauthority.

D. Proprietary Information Can Be Contraband

The fourth important underpinning of the emerging zombie FirstAmendment jurisprudence is Holder v. Humanitarian Law Project. There, amajority of the Court rejected a First Amendment challenge to a federallaw forbidding material aid and support to organizations classified asterrorist. (41) The entity challenging the law had provided human rightsadvocacy training to certain Kurdish and Tamil dissident organizations,and feared prosecution. (42) Although Humanitarian Law Project does notseem to be a case about private economic power at all, it too isusefully read in light of the propertarian shift in contemporary FirstAmendment jurisprudence. So read, the case stands for the propositionthat information that is property or that represents proprietaryknowledge can become contraband and the target of interdiction mandates.(43)

Within the First Amendment canon, disputes about banned speech andprohibited associations evoke the era of the civil rights marches, theHouse Un-American Activities Committee, and the demise of broadlydrafted criminal syndicalism laws. Thus, for example, David Cole hasargued that Humanitarian Law Project represents a radical break fromcases like Brandenburg v. Ohio, which allowed punishment of speech onlywhen sufficiently linked to direct threats of violence. (44) That viewseems difficult to contradict, and from the perspective that Cole soably articulates, the decision in Humanitarian Law Project isinexplicable. And yet the constitutional law scholar's view of theworld is sometimes preoccupied with events within the stream ofconstitutional jurisprudence to the exclusion of those occurring outsideit. The decision in Humanitarian Law Project reflects the influence ofanother, more contemporary debate about information danger andinformation contraband that one also must acknowledge.

A new phase in the debate about information contraband and theFirst Amendment began in the 1990s, amid the dawning realization thatglobal information and communication networks and encryptiontechnologies permitted information to spread in an uncontrolled andradically democratic fashion. Public fears coalesced around a set ofthreats that the technorati dubbed the "Four Horsem*n of theInfocalypse": terrorism, drug dealers, pedophiles, and organizedcrime. (45) The Four Horsem*n represented existential threats to thefabric of society and the rule of law: threats in response to whichordinary procedures might be suspended in favor of extraordinarymeasures. With the articulation of these threats, the stage was set fora shift in the legal understanding of the relationship between speechand danger.

The first strand of the contemporary discourse about informationcontraband has explored the blurring of speech and conduct in executablecomputer code. In the mid-1990s, litigants in a pair of cases challengedthe attempted assertion of federal export control regulations torestrict Internet-based distribution of encryption technologies, and wonrulings acknowledging that human-readable source code is speech and thateven machine-readable object code has an important expressive dimension.(46) The federal courts have been unwilling, however, to accept thefurther argument that laws regulating code merit strict scrutiny.Instead, as the Sixth Circuit explained, "[t]he functionalcapabilities of source code, and particularly those of encryption sourcecode, should be considered when analyzing the governmental interest inregulating the exchange of this form of speech." (47) To similareffect, in Universal Studios, Inc. v. Corley, a case about code thatcircumvented technical protections for copyrighted works, the court heldthat circumvention tools could be regulated as conduct, subject to thesame general limitations that apply to other laws with secondary effectson speech. (48)

The statute challenged in Humanitarian Law Project reflects asimilar effort to define particular kinds of expertise as posing dangersin a way that transcended the formal classification of expert advice asspeech. As the lawsuit wound its way through the courts, Congressamended the definition of "material support or resources" toinclude "expert advice or assistance," and then amended thedefinition of "expert advice or assistance" to include"advice or assistance derived from scientific, technical or otherspecialized knowledge." (49) Expert speech, Congress seemed to besaying, has a kind of power that ordinary speech does not, and can berestricted on that basis--which, both Congress and the courts seemed tothink, is a different proposition than making invidious distinctionsamong kinds of speech or kinds of speakers. (50) The appellants inHumanitarian Law Project were not scientists or engineers, and were notproviding technical training in the lay sense of that term. (51) Yet ina world in which the line between speech and computer-mediated actionhad become vanishingly thin, the idea of the materiality of expert legaltraining could begin to seem entirely credible.

The second strand of the contemporary discourse about speech andexistential threats concerns the copyright pirate, and the appearance ofthis "fifth horseman" is in itself a development worthremarking. Beginning in the late 1990s, members of the recording andmotion picture industries and their respective trade associations wageda systematic campaign to associate online copyright infringement withorganized crime and terrorism, and to frame online infringement as anexistential threat to society in its own right. (52) The notion thatcopyright infringement threatens the social fabric in a way analogous toorganized crime or terrorism is, of course, highly debatable. As we havejust seen, however, if information is property first and foremost, thespeech-related reasons for regulating with a light hand appear lesssalient to both Congress and the courts. From a political perspective,moreover, the asserted problem of "piracy" presented opticsmore congenial to draconian state intervention.

While attempts during the 1990s and 2000s to expand legallysanctioned state surveillance of electronic communications met withdetermined resistance, (53) attempts to institute surveillance andinterdiction in the interest of copyright policing produced a series ofcompromises among the private commercial interests involved. Theseincluded a notice and takedown system for online service providers andvarious private-sector initiatives for automated enforcement andfiltering of online content. (54) Although Congress had not yetattempted to legislate general interdiction obligations--a move thatwould come two years after the decision in Humanitarian Law Project--by2010 both Congress and the courts clearly recognized legal and technicalinterdiction of information flows offensive to proprietary interests asimportant resources in the legislative toolkit.

The final strand of the contemporary discourse about informationcontraband concerns state and corporate secrets. Congress enacted thelaw challenged in Humanitarian Law Project in 1997, but for a variety ofreasons, including the curative amendments noted above, the case did notreach the Court until a decade later. The Court held oral argument inFebruary 2010. (55) In April 2010, the news broke that WikiLeaks, aself-described open government organization, had published a video of a2007 attack by a U.S. military helicopter in Baghdad that killed anumber of civilians, including children, and two Reuters employees. Theepisode received extensive coverage by U.S. newspapers of record, whichnoted the organization's history of leaking hidden informationabout government and corporate operations. (56) WikiLeaks attracted itsshare of defenders, but its critics saw a textbook case of advocacy runamok and threatening to disrupt the orderly flows of policing andnation-building. (57) A New York Times article on WikiLeaks publishedonly a few weeks beforehand had quoted a Pentagon report as concludingthat information of the sort routinely published by WikiLeaks"could be used by foreign intelligence services, terrorist groupsand others to identify vulnerabilities, plan attacks and build newdevices." (58)

The Court decided Humanitarian Law Project two months afterWikiLeaks published the video and two days after the New York Timesreported as front-page news that U.S. Army Specialist Bradley Manninghad been arrested on suspicion of having leaked the information toWikiLeaks. (59) At oral argument and in its briefs, the government hadasserted that expert training in human rights advocacy could work tolegitimize dangerous organizations. (60) Accepting that justification,the majority opinion also noted that terrorist organizations could relyon such training to "threaten, manipulate, and disrupt" theinternational legal system. (61) Additionally, the Court cautioned aboutthe risks of "straining the United States' relationships withits allies and undermining cooperative efforts between nations toprevent terrorist attacks." (62)

The exercise of situating the Justices within a larger culturalcontext is inevitably speculative. Even so, the Justices live in thesame world that the rest of us do. The Humanitarian Law Project majorityopinion is a product of its time, and not only because it expresses thedeference to asserted national-security imperatives that has become thenorm in the post-9/11 environment. It also dovetails neatly with thedebates about material expertise, technical interdiction, and the viralspread of online conduct that have come to loom so large in the publicview. So read, the case establishes the predicate for a shift away fromBrandenburg and toward a far more flexible approach to claims ofspeech-related danger when certain kinds of interests are threatened.(63)

Taken together, the decisions just described sketch the broadoutlines of an emerging First Amendment jurisprudence that issurprisingly coherent, and more than a little unsettling. CitizensUnited and Sorrell stand for the proposition that information flows thatadvance the purposes of private property accumulation and consumersurplus extraction may move freely with little fear of encounteringregulatory obstacles. At the same time, Humanitarian Law Project,Eldred, and Golan are proof that some types of content and speakerdistinctions will be supported by the full force of law--will betreated, in other words, as principled and nonarbitrary. Together theseopinions establish both a generally deregulatory stance towardproprietary, profit-motivated uses of information and the predicate forinstalling circuit breakers within the network to intercept other kindsof uses that threaten proprietary interests. Eldred, Golan, and CitizensUnited articulate and elevate to constitutional significance a tightequivalence between speech and property, making clear that anyoneinvoking speech arguments to limit property claims confronts a heavyburden. Humanitarian Law Project and Sorrell, meanwhile, invertlong-established rules about the evidentiary thresholds forconstitutional scrutiny of speech regulation, investing censorship ofactivism with national security implications but encouraging FirstAmendment challenges to regulation of private economic activity.

II. SUBCONSTITUTIONAL SETTLEMENTS: POWER AND PRIVILEGE IN THEINFORMATION ECONOMY

So far, I have argued that First Amendment scholars should pay moresystematic attention to a set of developments that only partiallyoverlaps the territory long conceived as the First Amendment'straditional core. Many of those developments involve private economicactivity and proprietary claims to information. In general, the Courthas resolved First Amendment claims relating to private economicactivity in a way that ratifies emerging distributions of informationpower. In this respect, contemporary First Amendment jurisprudencealigns with what scholars in a variety of fields have identified as amore general shift toward a neoliberal governmentality that emphasizesmarket liberties and a market-based approach to political participation.(64)

Constitutional law does not itself produce the shift towardneoliberal governmentality. As Morton Horwitz has observed, "Aconstitutional revolution can take place only when the intellectualground has first been prepared." (65) Horwitz was describing theNew Deal revolution in constitutional law, and more particularly theneed to take careful note of its prehistory. As his research showed, thedevelopment of private and commercial law during both the antebellumperiod and the post-Civil War years established the distributivebackdrop against which the constitutional disputes of the Lochner andNew Deal eras were litigated. Economic regulation was commonplace in thenineteenth century, and initially emerged in ways that reinforcedemerging patterns of industrial power, while judges came to understandthe common law instrumentally, as a tool for promoting commerce andeconomic development. (66) The judicial philosophy that produced Lochnerwas in part a reaction to perceived special-interest legislation thatthreatened property interests, but the turn toward social sciencemethodology that progressive legal thought set in motion also tended tovalidate existing economic arrangements. (67) Similarly, the FirstAmendment jurisprudence outlined in Part I takes its shape from anantecedent pattern of subconstitutional settlements and justificationsthat reflects perceived economic, commercial, and political imperatives.

The point I want to make here is most aptly characterized asHohfeldian: in the emerging information economy, the balance of rights,privileges, powers, and immunities that characterized the industrialeconomy and the regulatory frameworks put in place to constrain it isshifting. (68) The transformation now underway in our political economyis engendering a corresponding shift in the distribution of legal powerand privilege that extends across doctrinal boundaries and that is farmore fundamental than the subject-matter divisions that such boundariesattempt to impose.

A. Corporate Citizens in the Marketplace

In both Citizens United and the earlier cases about the free speechrights of media companies on which the Citizens United majority relied,the Court took as given that corporations speak in the same ways thatpeople do and that money enhances communicative power in a linear,additive way. Those assumptions are charmingly old-fashioned. In thecontemporary information economy, the expressive power of capital is notadditive but rather multiplicative and synergistic. One of the principalvehicles for the expressive power of capital is the corporate brand, andcorporations rely on their brands to engage in norm entrepreneurship ona wide range of social, economic, and technical issues. Thecommunicative impact of brands is backed by both old and new forms oflegal and market privilege.

Brand-driven corporate messaging is both increasingly pervasive andincreasingly difficult to disentangle from the commercial and socialcontexts in which it is embedded. (69) Logos and other indicia ofcorporate sponsorship adorn bodies, billboards, theaters and arenas, andother public spaces. In addition, corporate brand owners pursue a widerange of other branding opportunities that might yield bottom-linebenefits: product placements in films and television shows, displays onthe uniforms and equipment of professional athletes, and so on. Themodern corporation does not simply advertise its wares, however. Itdevelops a "social media presence" on platforms like Facebookand Twitter, streaming updates to its followers about developments thatmight implicate its market or enhance its brand cachet. In addition, itdevelops gamified promotional strategies designed to recruit individualconsumers as brand evangelists and reward them for their successes. (70)These developments make the cumulative power of corporate messaging fargreater than the Court's discussion presumed. Although speech inthe service of branding tends not to be overtly political, it reflectsand reinscribes the ethos of consumerist, transactionally inflectedparticipation that increasingly characterizes public discourse. (71)

The principal source of federal protection for brands and brandingactivities, the Lanham Act, is a creation of the industrial era. (72)Its enactment in 1946 marked the emergence of a nationwide industrialeconomy within which the meaning of marks of origin as signifiers ofcorporate reputation was no longer only local. (73) Within the frameworkestablished by the Lanham Act, the basic unit of reputation nominallyremains the individual mark. Federal registration is available only forspecific marks, and causes of action for infringement must be pleaded ona mark-specific basis. (74)

At the same time, case law interpreting the Lanham Act's"likelihood of confusion" standard has evolved steadily towardrecognition that in the information era, the currency of reputation isthe brand more generally. Thus, for example, infringement judgments incases involving knock-offs seem crafted to protect marks as signifiersof luxury status; and the general cause of action for unfaircompetition, originally intended as a catch-all, is routinely recruitedto cover a wide variety of situations that implicate brands rather thanmarks. (75) In disputes about the use of trademarks as search terms,corporate interests lost some battles but won the war; search has beenpervasively monetized. (76) Last but hardly least, other types ofentitlements in marks have proliferated in ways that acknowledge andreinforce the expressive power of capital. Both rights against dilutionand tarnishment of well-known marks and the system of trademark-basedproperty rights in domain names work to protect the cognitive andaffective capital that brand owners have developed. (77)

The widening arc of federal trademark and unfair competition lawhas produced ripple effects on the breathing room for culturalcommentary invoking marks and brands. Unlike the Copyright Act, theLanham Act does not contain an open-ended fair-use provision, so courtsconsidering claims involving parodies and other cultural uses have hadto improvise. Clear parodies in literary and audiovisual workspredictably escape liability, but the results in other kinds of casesinvolving the invocation of brands as cultural signifiers can be quitedifferent, and such cases can be very costly to litigate regardless ofthe ultimate outcome. (78) As Rebecca Tushnet and Deven Desai haveobserved, these results are especially striking because they depart sogreatly from those that established First Amendment principles wouldseem to require: they penalize efforts to contest the persuasive forceof branded speech and validate an asserted interest in controllingreputation that the law generally rejects when individual public figuresare involved. (79) Although the Supreme Court has not yet spoken on theapplication of the Lanham Act to cultural uses of marks, its 1987decision in the "Gay Olympics" case allowed a proprietaryclaim to overcome an expressive one. (80)

Finally, it is worth noting that the growing expressive power ofcorporate reputation comes at a time when the ability of ordinary peopleto counter reputational injury is shrinking. The Communications DecencyAct of 1996 (CDA) granted broad immunity from defamation liability toonline intermediaries. (81) Congress styled the CDA as aspeech-promoting measure, and it certainly was; early court decisions indefamation cases against Internet access providers created a risk ofsignificant liability for an emerging industry that promised to createunprecedented opportunities for expression. (82) Yet the CDA wentfurther than necessary to shelter that industry, changing the contoursof existing defamation law to eliminate the risk of distributorliability for intermediaries possessing knowledge of an ongoing harm.(83) That change benefited both new online intermediaries and old mediacompanies that expanded into the market for Internet services, aligningspeech interests with property interests in a different but no lesspowerful way.

B. Industrial Copyright

The Court in Eldred took the expansionist trajectory of copyrightas an inevitable response to "demographic, economic, andtechnological changes." (84) Authors' increased longevity,however, might equally well reinforce the argument that postmortemprotection for copyrights is unnecessary. The purported economicimperative for longer copyright also was illusory; as the amicus briefof Nobel Laureate economists demonstrated, the discounted present valueof a twenty-year term extension to authors of works yet to be createdwas essentially nil. (85) And the Court's view of technologicalreality told only half the story. Property rights may requirestrengthening to counter new threats, but the specter of new threatsalso can be invoked opportunistically to expand existing entitlementsinto uncharted territory. Copyrights are broader and last longer thanever before, but that result reflects historical contingency and theassertion of power rather than the demands of materialist logic.

The one-way ratchet in the scope and duration of copyrightentitlements that has been underway since the mid-twentieth century hasserved primarily corporate interests. The dramatic expansions ofcopyright in the mid-twentieth century to cover the byproducts of newrecording and broadcast technologies responded directly to the influenceof newly powerful industries. As Jessica Litman has documented, thoseindustries actively participated in the drafting of the Copyright Act of1976, developing a then-novel process that proceeded via negotiation andcompromise among the affected industries with minimal oversight byelected legislators. (86) By the time that process was concluded, thecapture of the legislative process was essentially complete. Theresulting legislation contained broad, general rights and narrow,specific limitations, eliminating the latitude that formerly had existedfor many nonprofit and downstream uses of copyrighted works. (87)

The capture of the copyright legislative process has persisted intothe Internet era, producing both continued copyright expansion and theenactment of new paracopyright regimes such as the Digital MillenniumCopyright Act's prohibitions against trafficking in tools forcircumventingtechnical measures applied to copyrighted works. (88)Although not every proposal for strengthened protection has succeeded,that result often reflects the efforts of another group of powerfulinterests that includes computer equipment manufacturers and providersof Internet services. For example, many exceptions to theantitrafficking provisions benefit those interests, as does thestructure of the DMCA's notice-and-takedown provisions. (89) So toowith copyright litigation: recent years have seen courts begin torecognize and privilege a wide range of conduct by technology companiesand celebrity artists as fair use, but a parallel recalibration to carveout breathing room for creative play and routine personal use byordinary people has yet to occur. (90) Information and entertainmentindustry interests also predominate in international trade negotiations.As a result, and despite its official position to the contrary, theUnited States Trade Representative regularly advances proposals in tradenegotiations that go beyond what U.S. copyright law would require, anduses its annual Special 301 report to name and shame countries that haveresisted those proposals (or for other, political reasons). (91)

Meanwhile, in the legislative arena, the rhetoric has begun toshift in a way that nakedly acknowledges the real interests at stake.Industry associations that used to bring individual authors to testifybefore Congress now send their own officials, who make arguments aboutdistribution incentives, trade balances, and gross national product.(92) (The Golan majority cited this too as ineluctable reality. (93))Powerful and well-connected new organizations such as the CopyrightAlliance boast membership lists consisting of entertainment, software,and information industry associations. (94) Copyrighted works mayoriginate as speech by authors, but in the halls of Congress and thecorridors of K Street they are big business; they become speechinterests again only when legal briefs must be crafted.

C. The Biopolitical Public Domain

The parties in Sorrell argued vigorously about the level ofscrutiny that ought to apply to laws regulating a type of private-sectorinformation processing that had both privacy and price implications.None questioned the background default rule that absent a special reasonfor protection, personally identifiable information is there for thetaking. That assumption conceals a distributive decision that isantecedent and profoundly important to the First Amendment inquiry.Scholarly commentary on Sorrell has cited the case as evidence of aresurgent Lochnerism because the majority opinion reorients FirstAmendment standards toward the protection of economic liberty. (95) Thecomparison is even more apt than that reasoning suggests. The conceptionof economic liberty that Lochner constitutionalized reflected aparticular, contingent relationship between the private law of contractand economic regulation that had evolved over the course of thepreceding century as the industrial economy emerged. (96) In similarfashion, the conception of information freedom constitutionalized bySorrell reflects a purported baseline that has itself been underconstruction during the decades that have witnessed the emergence of theinformational era.

In the United States, the commercial data processing market hasbecome a multibillion-dollar market that sits at the intersection of anumber of information-era business models. The oldest of those models isthe consumer credit reporting industry, which emerged on a nationwidescale in the mid-twentieth century, and which has been sheltered by afederal statutory framework that limits the liability of consumerreporting entities and imposes no independent duty to verify informationor reconcile discrepancies between conflicting reports. (97) In the latetwentieth century, as automated reporting and data processing emergedand became commoditized, credit reporting agencies, credit issuers, andother entities began developing business models based on mining theirdatabases for sources of competitive advantage. (98) The emergence ofthe Internet prompted explosive growth in the number and variety ofbusinesses that collect, process, and exchange personally identifiableinformation. Today, those businesses include: search providers thatseek, as Google puts it, "to organize the world's informationand make it universally accessible and useful"; (99) web-basedsocial networking platforms that use graphically rich, hypertext-basedenvironments to enable customizable member profiles and multimediaexchanges; and operators of online massively multiplayer gamingplatforms. As companies in these industries have moved beyond thestartup stage and sought stable sources of financing, they havegravitated toward surveillance-based business models to help themmonetize user activities more completely and effectively. (100) Otherinformation enterprises, including data brokers and developers ofso-called behavioral advertising tools, help to provide suchcapabilities to all types of businesses. (101) Widespread ownership ofnetworked mobile devices has enabled real-time tracking of people'swhereabouts and activities, enabling more precise targeting of offersand opportunities. The flows of information that support theseactivities move in ways that are mostly invisible to ordinary consumers,but they are omnipresent.

These developments, like the others discussed in this Article, aremanifestations of the transformation now underway in our politicaleconomy, and here it is important to consider some of the conceptualwork that transformation requires. Like the prior transition fromagrarianism to industrialism, the ongoing transition from industrialismto informationalism involves the commodification of importantresources--land, labor, and money then; attributes, preferences, andattention now. (102) The idea of resources available for commodificationin turn entails a very particular idea of the common as unowned andavailable. The routine practices of personal information processing thathave become the norm in the information economy are constituting a newtype of public domain: the biopolitical public domain, a source ofpresumptively raw materials that are there for the taking and on whichinformation-era innovators can build. (103)

Like the public domain in intellectual property, the biopoliticalpublic domain is a legal construct that does normative and distributivework. (104) It functions as a site of legal privilege (and ofcorrelative no-rights for individual consumers) and as a starting pointfor the creation of new types of commercial entitlements that benefitinformation businesses. Personal information harvested from consumers iscollected, processed, and exchanged in ways that become the basis forproprietary claims based on trade secrecy, which allegedly inheres inthe databases, the algorithms and techniques used to process the data,and the resulting correlations and predictions. (105) The biopoliticalpublic domain also frames an approach to knowledge production based ontechniques for pattern identification within very large data sets.Information businesses use those techniques to make human behaviors andpreferences calculable, predictable, and profitable. (106)

Lost in this process of expansion and reification is the ability tocomprehend the harms that widespread collection and processing ofpersonal information might produce. In the lower courts, informationprivacy claims challenging the commercial processing of personalinformation have overwhelmingly resulted in dismissal for failure toallege injury. (107) In policy processes and in the media, theinformation industries and libertarian tech policy pundits take adismissive stance toward information privacy claims, ridiculing privacyas antiprogressive and its proponents as old-fashioned and fearful.(108) Because Sorrell was not really a case about an information privacyregulation, it is not clear what the Court would say to a case thatsquarely presented well-developed claims of information privacy harm. Atminimum, however, a more robust theory of harm likely would support astronger claim of government interest, which might affect theCourt's judgment about the extent of tailoring required for the lawto survive. The patterns of legal privilege and correlativedisentitlement coalescing around the biopolitical public domain and itsconstituent knowledge practices work to prevent such recognition fromoccurring.

D. Circuit Breakers in the Net

The Holder v. Humanitarian Law Project opinion took for granted aconception of dangerous speech inconsistent with itsmid-twentieth-century precedent on sedition and communism but much moreconsistent with late-twentieth-century conceptions of online threats andacceptable responses. Many (though not all) recent developments in thelegal and technical construction of categories of information contrabandreflect private economic imperatives. Of particular importance, the pasttwo decades have witnessed a deep and seemingly permanent shift in thenature of copyright enforcement. Twenty years ago, the principalenforcement tool was the civil infringement lawsuit. Criminalprosecution might supplement civil litigation in particularly egregiouscases, but the Department of Justice generally preferred to devote itsresources to other problems, and criminal enforcement was relativelyrare. (109) Today, criminal enforcement is far more frequent, and bothprosecutors and copyright owners have new and powerful tools for ex anteinterdiction at their disposal. (110)

Over the course of the 1990s and 2000s, Congress amended thecriminal provisions of the federal intellectual property laws ninetimes. The amendments expanded the categories of infringing conducteligible for criminal penalties, increased the penalties for criminalcopyright infringement and for importation and distribution of goodsbearing counterfeit marks, and gave enforcement authorities the power torequest court orders directing ex parte seizures of Internet domainsthat hosted infringing materials. (111) In addition, the EconomicEspionage Act of 1996 established federal criminal liability for theftof trade secrets. (112) On the civil enforcement side, the DigitalMillennium Copyright Act of 1998 established a new notice-and-takedownprocedure directed at online intermediaries and another, less-well-knownprocedure for securing interdiction of infringing foreign traffic on asite-wide basis. (113) At the same time, litigation-driven expansion inthe suite of indirect infringement theories created the potential formonetary liability on a hitherto unheard-of scale. (114)

For some members of the copyright industries, these developmentshave not gone far enough. In particular, a litigation campaign designedto extend indirect infringement liability to reach third-party paymentprocessors and venture capitalists failed to produce the desiredresults. (115) In 2011, at the behest of the motion picture, recording,and major league sports industries, several members of Congress proposedlegislation that would empower courts to cut off the support servicesprovided by payment processors and other infrastructure providers uponex parte application by an aggrieved rightholder. (116) The Stop OnlinePiracy Act (SOPA) and its companion bill, the Protect IntellectualProperty Act (PIPA), sparked vehement protests that culminated in aworldwide Internet blackout in January 2012. (117) Partly in response tothe protests and partly in response to the objections of powerfulInternet companies, Congress tabled the legislation. (118)

Notably, although the Obama Administration ultimately declined tosupport passage of the SOPA/PIPA legislation, its official position wasthat strong intervention in the online environment on behalf ofintellectual property owners was entirely consistent with U.S.solicitude for freedom of speech. (119) Well before the SOPA and PIPAlegislation was introduced, however, the federal government had begunexporting the lessons learned from copyright interdiction to otherdomains far removed from intellectual property. In late 2010, after thenews broke that WikiLeaks had leaked a cache of U.S. diplomatic cablesthat revealed contempt and disrespect for countries considered to beU.S. allies, WikiLeaks suddenly found itself without Domain Name System(DNS) and web hosting providers and without a way to process donations.(120) Although government officials denied that official pressure onEveryDNS.net, Amazon.com, and PayPal, which formerly had provided thoseservices to WikiLeaks, caused those sites to terminate theirrelationships, industry observers who had watched the developmentsclosely concluded otherwise. (121)

As to the SOPA/PIPA proposal itself, subsequent developmentssuggest that the story of the evolution of interdiction capabilitiesremains only partly written. The American Bar Association'sIntellectual Property Section recently issued a detailed reportoutlining recommendations for implementing strengthened interdictionobligations. (122) Meanwhile, observers of the push to draft new,comprehensive regional trade agreements strengthening intellectualproperty enforcement have worried that the "wall of secrecy"surrounding the negotiations will enable the SOPA/PIPA prohibitions toresurface in the language of those agreements. (123) Whether or notinterdiction obligations are extended, however, the changed enforcementclimate has catalyzed other market reactions. Every major Internetcompany that hosts user-provided content uses automated filteringtechnology to prevent the posting of infringing content, and the majorInternet access providers have adopted a "six strikes" menu ofgraduated sanctions to be levied on customers who they believe aretrafficking in infringing materials. (124) These and other measurescreate an online environment in which proprietary circuit breakers areexpected and ordinary.

This Part of the Article has attempted to bring into sharper reliefthe background against which contemporary free speech litigation isconducted. That background reflects a pattern of ongoing realignment inthe distribution of legal power and privilege in response to theasserted needs of powerful actors in the emerging information economy.Expanding protection for signifiers of corporate reputation hasbolstered the expressive power of capital, and immunity from legalaccountability for speech harms suffered by individuals and correlativedisability on the part of those subjected to such harms have fortifiedthat power still further. The expressive power of capital is fortified,as well, by a robust and open-ended privilege to harvest informationfrom the biopolitical public domain, and by the correspondingdisentitlement of individual information subjects to declineparticipation. Intellectual property rights in creative and expressiveworks have continued to expand, as have correlative duties toaccommodate them. Last, though hardly least, as rights in intellectualproperty and other types of assertedly proprietary information haveexpanded, so has the power to demand reconfiguration of the network toprotect those entitlements, with corresponding increases in thecorrelative liability of those who might stand in the way. Each of theseshifts informs the First Amendment jurisprudence described in Part I.The great intellectual and moral failing of the contemporary FirstAmendment, and the impetus for its ongoing zombification in the serviceof information power, is that it has simply accepted them.

CONCLUSION

Constitutional law's purposes are hotly debated and I have nogrand claims to make on that score; my aim in this Article has been todraw attention to an emerging pattern. History suggests thatconstitutional law has been invoked to reinforce the accumulation ofprivate economic power at least as often as to restrain it. (125) Theaccount presented here suggests that a transformation of the former,reactionary sort is underway. For now, at least, First Amendment law atthe dawn of global informational capitalism is ratifying distributivearrangements that celebrate and consolidate private economic power,including especially new forms of information power that undergird theemerging information economy.

Shifting the course of constitutional transformation entailsrecognition and reframing, and the two processes are linked. FrederickSchauer has argued that reinvigorating free speech jurisprudencerequires more careful attention to naming and substantiatingspeech-related harms. (126) That advice is well worth heeding, but inconceptualizing harms it is also important to focus on who benefits. Itis difficult to assert a speech harm when the counterparty has anentitlement that seems solidly rooted in the preexisting economic andsocial fabric. Reinvigorating free speech jurisprudence for theinformation age will entail recognition and reframing of harms, but italso requires more careful attention to naming and demystifying emergingpatterns of legal power and privilege.

This suggests, however, that legal scholars looking toconstitutional law for tools to halt the seemingly inexorable march ofprivate power probably have been looking in the wrong place. As manyhave noted, the Constitution was not designed as a vehicle forcorrecting the maldistribution of resources, but rather tends to takeinequality of property as a given. If the hope of a reinvigorated FirstAmendment is all that stands between us and the advancing horde of FirstAmendment zombies, we are in deep trouble. Questions about private lawand private harms, in contrast, are centrally about access to anddistribution of resources. A jurisprudence of harms and benefits for theinformation economy must begin with those questions.

(1.) See generally Kyle William Bishop, American Zombie Gothic: TheRise And Fall (and Rise) of the Walking Dead in Popular Culture 47-59(2010); Colin Dayan, The Law Is a White Dog: How Legal Rituals Make andUnmake Persons 21-22 (2011).

(2.) Golan v. Holder, 132 S. Ct. 873 (2012); Sorrell v. IMS HealthInc., 131 S. Ct. 2653 (2011); Eldred v. Ashcroft, 537 U.S. 186 (2003).

(3.) Christina Bohannon, Copyright Infringement and HarmlessSpeech, 61 HASTINGS L.J. 1083, 1115 (2010); see Joseph P. Bauer,Copyright and the First Amendment: Comrades, Combatants, or UneasyAllies?, 67 WASH. & LEE L. Rev. 831 (2010); see also Alan E.Garfield, The Case for First Amendment Limits on Copyright Law, 35HOFSTRA L. Rev. 1169, 1177 (2007) (reacting similarly to Eldred from aFirst Amendment scholar's perspective). But see Neil WeinstockNetanel, First Amendment Constraints on Copyright After Golan v. Holder,60 UCLA L. Rev. 1082, 1086-87 (2013) (arguing that the two cases"bring the First Amendment to bear on copyright law much as courtshave done in applying definitional balancing to the laws of defamation,intentional infliction of emotional distress, privacy, trademark, andother statutory and common law causes of action").

(4.) See Neil M. Richards, Intellectual Privacy (2015); Neil M.Richards, Why Data Privacy Law Is (Mostly) Constitutional, 56 Wm. &MaryL. Rev. 1501 (2015); see also Ashutosh Bhagwat, Sorrell v. IMSHealth: Details, Detailing, and the Death of Privacy, 36 Vt. L. Rev.855, 868 (2012) (reacting similarly to Sorrell from a First Amendmentscholar's perspective).

(5.) 558 U.S. 310 (2010) (invalidating 2 U.S.C. [section] 441(b)(2002)).

(6.) See, e.g., Heather K. Gerken, An Initial Take on CitizensUnited, BALKINIZATION (Jan. 21, 2010, 12:08 PM),http://balkin.blogspot.com/2010/01/initial-take-on-citizens-umted.html[http://perma.cc/87HT-SSU9]; Nate Persily, Citizens United: A Preview toa Post-Mortem, BALKINIZATION (Jan. 21, 2010, 8:04 AM),http://balkin.blogspot.com/2010/01/citizens-united-preview-to-post-mortem_21.html [http://perma.cc/5F9K-VGPA].

(7.) See Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518U.S. 727, 747 (1996) (plurality opinion); Turner Broad. Sys., Inc. v.FCC, 512 U.S. 622, 636 (1994); Miami Herald Publ'g Co. v. Tornillo,418 U.S. 241 (1974); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 387(1969).

(8.) See Citizens United, 558 U.S. at 352-53.

(9.) Id. at 353 (citation omitted).

(10.) See Neil Weinstock Netanel, Copyright and a Democratic CivilSociety, 106 YALE L.J. 283, 347-63 (1996). See generally Eugene Volokh,Freedom for the Press as an Industry, or for the Press as a Technology?From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012). By this Iintend no comment on the debate about whether the press as aninstitution actually should receive special First Amendmentconsideration. See, e.g., C. Edwin Baker, The Independent Significanceof the Press Clause Under Existing Law, 35 HOFSTRA L. Rev. 955 (2007);Sonja R. West, The Stealth Press Clause, 48 Ga. L. Rev. 729 (2014). Atminimum, it seems important to ask whether, in this age ofhyperpartisanship, media companies as a group actually do function tooperationalize press freedoms or whether they function solely and moresimply as speakers in their own right.

(11.) See FCC v. Nat'l Citizens Comm, for Broad., 436 U.S.775, 799 (1978); Red Lion, 395 U.S. at 375-77; see also In reEditorializing by Broad. Licensees, 13 F.C.C. 1246 (1949).

(12.) See In re Editorializing by Broad. Licensees, 13 F.C.C. at1251-55.

(13.) See Nat'l Citizens Comm, for Broad., 436 U.S. at795-800; Red Lion, 395 U.S. at 375-77.

(14.) See also Michael W. McConnell, Reconsidering Citizens Unitedas a Press Clause Case, 123 Yale L.J. 412 (2013) (arguing that inproducing and disseminating the film, Citizens United was exercising itsconstitutionally protected right to freedom of the press and that theCourt should have decided the case on that ground).

(15.) Citizens United v. FEC, 558 U.S. 310, 322-27 (2010).

(16.) See Deborah Heilman, Money Talks but It Isn't Speech, 95Minn. L. Rev. 953 (2011); McConnell, supra note 14, at 447-49.

(17.) See generally Louis Michael Seidman, The Dale Problem:Property and Speech Under the Regulatory State, 75 U. Chi. L. REV. 1541(2008).

(18.) Golan v. Holder, 132 S. Ct. 873, 890 (2012); Eldred v.Ashcroft, 537 U.S. 186, 221 (2003).

(19.) Golan, 132 S. Ct. at 890 (citing Eldred, 537 U.S. at 219;Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546,558 (1985)); Eldred, 537 U.S. at 219 (citing Harper & Row, 471 U.S.at 558).

(20.) 17 U.S.C. [section][section] 102, 107 (2012); see Golan, 132S. Ct. at 889-90; Eldred, 537 U.S. at 219-20.

(21.) Golan, 132 S. Ct. at 889-90; Eldred, 537 U.S. at 221. For anapproving view of this conclusion, see Tun-Jen Chiang, Rehabilitatingthe Property Theory of Copyright's First Amendment Exemption, 89NOTRE DAME L. REV. 521 (2013).

(22.) Harper & Row, 471 U.S. at 560; Cable/Home Commc'nCorp. v. Network Prods., Inc., 902 F.2d 829, 849 (11th Cir. 1990); NewEra Publ'ns Int'l, ApS v. Henry Holt & Co., Inc., 873 F.2d576, 584 (2d Cir. 1989); Walt Disney Prods, v. Air Pirates, 581 F.2d751, 758 (9th Cir. 1978). But see Suntrust Bank v. Houghton Mifflin Co.,268 F.3d 1257, 1264-65 (11th Cir. 2001) (giving separate and independentweight to First Amendment concerns militating against grant ofpreliminary injunction in fair use dispute).

(23.) See Harper & Row, 471 U.S. at 559.

(24.) See Julie E. Cohen, Configuring the Networked Self: Law,Code, and the Play of Everyday Practice 74-79 (2012); Julie E. Cohen,Copyright, Commodification, and Culture: Locating the Public Domain, inThe Future of the Public Domain 121, 157-64 (Lucie Guibault & P.Bernt Hugenholtz eds., 2006).

(25.) See Rebecca Tushnet, Copy This Essay: How Fair Use DoctrineHarms Free Speech and How Copying Serves It, 114 Yale L.J. 535 (2004).

(26.) See Digital Millennium Copyright Act, Pub. L. No. 105-304,112 Stat. 2860, 2863-76 (1998) (codified at 17 U.S.C. [section][section]1201-1204 (2012)); Sonny Bono Copyright Term Extension Act, Pub. L. No.105-298, [section][section] 101-102, 112 Stat. 2827, 2827-28 (1998)(codified at 17 U.S.C. [section][section] 302304 (2012)). On thespeech-inhibiting effects of these laws, see Jack M. Balkin, DigitalSpeech and Democratic Culture: A Theory of Freedom of Expression for theInformation Society, 79 N.Y.U. L. Rev. 1 (2004); Yochai Benkler, Free asthe Air to Common Use: First Amendment Constraints on Enclosure of thePublic Domain, 74 N.Y.U. L. REV. 354 (1999); and Erwin Chemerinsky,Balancing Copyright Protections and Freedom of Speech: Why the CopyrightExtension Act Is Unconstitutional, 36 LOY. L.A. L. Rev. 83 (2002).

(27.) See COHEN, supra note 24, at 82-88; JESSICA SlLBEY, TheEureka MYTH: CREATORS, Innovators, and Everyday Intellectual Property26-80 (2014).

(28.) See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.Comm'n, 447 U.S. 557, 561-66 (1980); Ohralik v. Ohio State BarAss'n, 436 U.S. 447 (1978); Bates v. State Bar of Ariz., 433 U.S.350 (1977); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council,Inc., 425 U.S. 748 (1976).

(29.) 447 U.S. at 561-66.

(30.) See, e.g., L.A. Police Dep't v. United ReportingPubl'g Corp., 528 U.S. 32, 40-41 (1999) (declining to address thestrict scrutiny question).

(31.) 131 S. Ct. 2653, 2663-66 (2011).

(32.) Id.

(33.) Id. at 2666-67 (citing Bartnicki v. Vopper, 532 U.S. 514(2001), a case about an intercepted telephone conversation; Rubin v.Coors Brewing Co., 514 U.S. 476 (1995), a case about disclosures on aproduct label; and Dun & Bradstreet, Inc. v. Greenmoss Builders,Inc., 472 U.S. 749 (1985) (plurality opinion), a case about financialreports).

(34.) See Thomas R. Julin, Sorrell v. IMS Health May Doom FederalDo Not Track Acts, 10 Privacy & Sec. L. Rep. (BNA) No. 35 (Sept. 5,2011), available at http://perma.cc/8LEQ-GV6G.

(35.) See 2007 Vt. Acts & Resolves 635; Sorrell, 131 S. Ct. at2670-71 (discussing this aspect of the record).

(36.) See Sorrell, 131 S. Ct. at 2668-2670; IMS Health Inc. v.Sorrell, 630 F.3d 263, 276-77 (2d Cir. 2010), aff'd, 131 S. Ct.2653 (2011); Brief for Petitioner at 45-49, Sorrell, 131 S. Ct. 2653(No. 10-779).

(37.) Sorrell, 131 S. Ct. at 2671.

(38.) See Claude E. Shannon & Warren Weaver, The MathematicalTheory Of Communication 19 (1949). For two thought-provoking generalcritiques of the Shannon approach and its minimalist approach to thequestion of meaning, see N. KATHERINE HAYLES, How We Became Posthuman:Virtual Bodies in Cybernetics, Literature, and Informatics 50-83 (1999);and Dan Schiller, How to Think about Information 3-16 (2007).

(39.) See Solveig Singleton, Privacy As Censorship: A SkepticalView Of Proposals to Regulate Privacy in the Private Sector (Cato Inst.Policy Analysis No. 295, 1998), available at http://perma.cc/KE3A-XWKU:Adam Thierer & Berin Szoka, What Unites Advocates of Speech Controls& Privacy Regulation?, PROGRESS ON POINT, Nov. 2009, available athttp://perma.cc/P2WA-3PQW; Eugene Volokh, Freedom of Speech andInformation Privacy: The Troubling Implications of a Right to StopPeople from Speaking About You, 52 STAN. L. Rev. 1049 (2000).

(40.) See, e.g., Nat'l Ass'n of Mfrs. v. SEC, 748 F.3d359 (D.C. Cir. 2014); R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205(D.C. Cir. 2012); Mainstream Mktg. Servs., Inc. v. FTC, 358 F.3d 1228(10th Cir. 2004); King v. Gen. Info. Servs., 903 F. Supp. 2d 303 (E.D.Pa. 2012).

(41.) 561 U.S. 1 (2010).

(42.) Id. at 1-2.

(43.) A useful treatment of the information contraband question,focusing primarily on the question whether the general structure ofFirst Amendment doctrine permits contraband treatment, is Rodney A.Smolla, Information as Contraband: The First Amendment and Liability forTrafficking in Speech, 96 Nw. U. L. REV. 1099 (2002).

(44.) Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969); Scales v.United States, 367 U.S. 203, 203 (1961) (enunciating analogous rule forefforts to criminalize association); see David Cole, The FirstAmendment's Borders: The Place of Holder v. Humanitarian LawProject in First Amendment Doctrine, 6 Harv. L. & Pol'y REV.147, 147-48 (2012); see also Seth F. Kreimer, Censorship by Proxy: TheFirst Amendment, Internet Intermediaries, and the Problem of the WeakestLink, 155 U. PA. L. Rev. 11, 41-55 (2006) (arguing that efforts toregulate speech by targeting online intermediaries should consider themid-twentieth century's First Amendment lessons).

(45.) See Javier Bernal, Big Brother Is On-Line: Public and PrivateSecurity in the Internet, Cybersociology Mag. (Aug. 6, 1999),http://www.cybersociology.com/files/6_publicand-private security.html[http://perma.cc/KW3Q-DNF5]. For what appears to have been the first useof the term, see Timothy C. May, The Crypto Anarchist Manifesto, inCRYPTO ANARCHY, Cyberstates, and Pirate Utopias 61, 67 (Peter Ludlowed., 2001).

(46.) Junger v. Daley, 209 F.3d 481, 484-85 (6th Cir. 2000);Bernstein v. U.S. Dep't of State, 922 F. Supp. 1426, 1435 (N.D.Cal. 1996), aff'd sub nom. Bernstein v. U.S. Dep't of Justice,176 F.3d 1132 (9th Cir. 1999), withdrawn and reh'g granted, 192F.3d 1308 (1999). In Bernstein, the planned en banc rehearing wascancelled after the Commerce Department, to which export authority hadbeen transferred, announced plans to amend the challenged regulationsand notified the plaintiff that it no longer considered his code to becovered. Bernstein v. U.S. Dep't of Commerce, No. C 95-0582 MHP,2004 WL 838163, at *2, *5 n.2 (N.D. Cal. Apr. 19, 2004).

(47.) Junger, 209 F.3d at 485 (citing United States v.O'Brien, 391 U.S. 367, 377 (1968)).

(48.) 273 F.3d 429, 434-35, 450-52 (2d Cir. 2001) (citingO'Brien, 391 U.S. at 377; Ward v. Rock Against Racism, 491 U.S.781, 791, 799 (1989)).

(49.) For discussion of the amendments, see Holder v. HumanitarianLaw Project, 561 U.S. 1, 10-13 (2010).

(50.) See Humanitarian Law Project v. Mukasey, 552 F.3d 916, 931-32(9th Cir. 2007) (upholding amended statute as "not aimed atexpressive conduct" and not covering "a substantial amount ofprotected speech"), aff'd in part and rev'd in part subnom. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

(51.) Humanitarian Law Project, 561 U.S. at 2.

(52.) For work collecting and analyzing these statements, seeTARLETON GILLESPIE, WIRED Shut: Copyright and the Shape of DigitalCulture 113-25 (2007); John Logie, Peers, Pirates, and Persuasion:Rhetoric in the Peer-to-Peer Debates (2006); John Logie, A CopyrightCold War? The Polarized Rhetoric of the Peer-to-Peer Debates, FIRSTMONDAY (July 2003), http://firstmonday.org/ojs/index.php/fm/article/view/1064/984 [http://perma.cc/UYD3-LM76]. On the framing of copyrightinfringement as an existential threat, see Julie E. Cohen, PervasivelyDistributed Copyright Enforcement, 95 Geo. L.J. 1, 18-19, 24-25 (2006).

(53.) See, e.g., Sara Kehaulani Goo & Robert O'Harrow Jr.,New Airline Screening System Postponed: Controversy over Privacy Leadsto CAPPS II Paring, Delay Until After Election, WASH. Post, July 16,2004, at A2; Steven Levy, Battle of the Clipper Chip, N.Y. TIMES Mag.,June 12, 1994, at 44; Senate Rebuffs Domestic Spy Plan, WIRED (Jan. 23,2003), http:// archive.wired.com/politics/law/news/2003/01/57386[http://perma.cc/VE24-E5N8] (describing congressional hearings on thegovernment's "Total Information Awareness" initiative).

(54.) See Digital Millennium Copyright Act, Pub. L. No. 105-304,[section] 502, 112 Stat. 2860, 2905-16 (1998) (codified as amended at 17U.S.C. [section] 512 (2012)); Megan Geuss, YouTube Has Paid $1 Billionto Rights Holders via Content ID Since 2007, ARS TECHNICA, (Oct. 13,2014, 7:53 PM), http://arstechnica.com/tech-policy/2014/10/youtube-has-paid-1-billion-to-rightsholders-via-content-id-since-2007/[http://perma.cc/G278-6DAR]. On the implications ofprivate-sector automated enforcement initiatives in copyright and otherareas, see Danny Rosenthal, Assessing Digital Preemption (and the Futureof Law Enforcement?), 14 New Crim. L. Rev. 576 (2011).

(55.) Transcript of Oral Argument at 1, Humanitarian Law Project,561 U.S. 1 (Nos. 08-1498, 09-89), 2010 WL 621318.

(56.) See Elisabeth Bumiller, Video Shows U.S. Killing of ReutersEmployees, N.Y. TIMES, Apr. 6, 2010, at A13; Noam Cohen & BrianStelter, Airstrike Video Brings Attention to Whistle-Blower Site, N.Y.TIMES, Apr. 7,2010, at A8; Garance Franke-Ruta, Web Site Releases Videoof Baghdad Attack That Killed 2 Journalists, WASH. POST (Apr. 5, 2010,5:41 PM), http://www.washingtonpost.com/wp-dyn/content/article/2010/04/05/AR2010040503778.html [http://perma.cc/RUF7-CFL8].

(57.) See Gabriel Schoenfeld, Warfare Through "a Soda Straw,"WALL ST. J., June 23, 2010, at A17.

(58.) Stephanie Strom, Pentagon Sees a Threat from OnlineMuckrakers, N.Y. TIMES, Mar. 18, 2010, at A18.

(59.) Elisabeth Bumiller, Army Leak Suspect Is Turned in, byEx-Hacker, N.Y. TIMES, June 8, 2010, at Al.

(60.) Transcript of Oral Argument, supra note 55, at 42-46; Brieffor the Respondents at 56, Humanitarian Law Project, 561 U.S. 1 (Nos.08-1498, 09-89).

(61.) Humanitarian Law Project, 561 U.S. at 37.

(62.) Id. at 32.

(63.) See supra note 44 and accompanying text. Some claims ofspeech-related danger still receive more critical scrutiny, but theytypically do not involve threats to a proprietary interest ininformation. See United States v. Alvarez, 132 S. Ct. 2537, 2539 (2012)(invalidating a federal law criminalizing the making of falserepresentations about one's own receipt of military honors); Brownv. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2729 (2011)(enjoining enforcement of a California law prohibiting the sale orrental of violent video games to minors); United States v. Stevens, 559U.S. 460 (2010) (invalidating a federal law criminalizing the creation,possession, or sale of depictions of animal cruelty). Notably, Brownemployed strict scrutiny to invalidate a law that threatened theproprietary interests of game developers. See 131 S. Ct. at 2738.

(64.) See Wendy Brown, Neo-Liberalism and the End of LiberalDemocracy, 7 THEORY & EVENT 1 (2003); David Singh Grewal &Jedediah Purdy, Introduction: Law and Neoliberalism, 77 LAW &CONTEMP. Probs. 1 (2014); David Harvey, Neoliberalism as CreativeDestruction, 610 Annals Am. Acad. POL. & Soc. SCI. 22 (2007);Timothy K. Kuhner, Citizens United as Neoliberal Jurisprudence: TheResurgence of Economic Theory, 18 VA. J. SOC. POL'Y & L. 395(2011); Thomas Lemke, "The Birth of Bio-Politics": MichelFoucault's Lecture at the College de France on Neo-LiberalGovernmentality, 30 ECON. & SOC'Y 190 (2001).

(65.) Morton J. Horwitz, The Transformation of American Law,1870-1960, at 3 (1992).

(66.) See Morton J. Horwitz, The Transformation of American Law,1780-1860, at 4754, 78-97, 116-26, 186-210, 218-26 (1977).

(67.) See HORWITZ, supra note 65, at 208-12.

(68.) Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions asApplied in Judicial Reasoning, 23 Yale L.J. 16 (1913). See generallyPierre Schlag, How to Do Things with Hohfeld (Univ. of Colo. Law Sch.Legal Studies Research Paper Series, Working Paper No. 14-4, 2014),available at http://perma.cc/A6AV-Q8C4.

(69.) The legal scholarship on trademark law is just beginning tograpple with this dynamic in a more systematic way. See Mario Biagioliet al., Brand New World: Distinguishing Oneself in the Global Flow, 47U.C. DAVIS L. REV. 455 (2013); Deven R. Desai, From Trademarks toBrands, 64 Fla. L. Rev. 981 (2012).

(70.) See generally Rajat PAHARIA, LOYALTY 3.0: HOW BIG DATA ANDGAMIFICATION Are Revolutionizing Customer and Employee Engagement(2013); Gabe Zichermann & Joselin Linder, The GamificationRevolution: How Leaders Leverage Game Mechanics TO CRUSH THE Competition(2013). For a discussion of gamification as a surveillance strategy, seeJulie E. Cohen, The Surveillance-Innovation Complex: The Irony of theParticipatory Turn, in The Participatory Condition (Darin Barney et al.eds., forthcoming 2016).

(71.) See generally MARK ANDREJEVIC, INFOGLUT: How Too MUCHINFORMATION Is CHANGING THE Way We Think AND Know 44-57 (2013)(describing the burgeoning field of "sentiment analysis" andthe ascendancy of the "affective fact").

(72.) See Lanham Trademark Act, Pub. L. No. 489, 60 Stat. 427(1946) (codified as amended at 15 U.S.C. [section][section] 1051-1141(2012)).

(73.) See also Int'l Shoe Co. v. Washington, 326 U.S. 310, 316(1945) (extending the personal jurisdiction of the federal courts toencompass those whose activities established minimum contacts with theforum state).

(74.) See 15 U.S.C. [section][section] 1051-1054, 1114 (2012).

(75.) See Hermes Int'l v. Lederer de Paris Fifth Ave., Inc.,219 F.3d 104, 104, 108-09 (2d Cir. 2000); Ferrari S.P.A. v. Roberts, 944F.2d 1235, 1235, 1238-39 (6th Cir. 1991); Lois Sportswear, U.S.A., Inc.v. Levi Strauss & Co., 799 F.2d 867, 867, 871 (2d Cir. 1986). Forinsightful discussions of this trend, see Barton Beebe, IntellectualProperty Law and the Sumptuary Code, 123 HARV. L. Rev. 809, 845-59(2010); Rebecca Tushnet, Stolen Valor and Stolen Luxury, in The LuxuryEconomy and Intellectual Property: Critical Reflections (Barton Beebe etal. eds., forthcoming).

(76.) See Steven Levy, Secret of Googlenomics: Data-Fueled RecipeBrews Profitability, WIRED Mag. (May 22, 2009),http://archive.wired.com/culture/culturereviews/magazine/1706/nep_googlenomics [http://perma.cc/8GG8-Q9H3].

(77.) Federal Trademark Dilution Act, Pub. L. No. 104-98 [section]3, 109 Stat. 985, 985-86 (1996) (codified as amended at 15 U.S.C.[section] 1125(c) (2012)); Anticybersquatting Consumer Protection Act,Pub. L. No. 106-113, [section] 3002, 113 Stat. 1501 app. I, at 1501A-545to -552 (1999) (codified as amended at 15 U.S.C. [section] 1125(d)(2012)).

(78.) See, e.g., Hershey Co. v. Friends of Steve Hershey, No.WDQ-14-1825, 2014 WL 3571691, at *1-5 (D. Md. July 17, 2014) (findinglikelihood of confusion when politician named Hershey used chocolatebrown signs and white Impact or Helvetica Nueue font on election signs);Louis Vuitton Malletier, S.A. v. Hyundai Motor Am., No. 10 Civ.1611(PKC), 2012 WL 1022247 (S.D.N.Y. Mar. 22, 2012) (granting summaryjudgment on luggage manufacturer's dilution claim against carmanufacturer that invoked its mark in television commercial designed tosuggest that luxury could be affordable); Caterpillar Inc. v. WaltDisney Co., 287 F. Supp. 2d 913, 913, 917 (C.D. Ill. 2003) (declining toenjoin unflattering depiction of defendant's bulldozers in moviescene about deforestation); Grey v. Campbell Soup Co., 650 F. Supp. 1166(C.D. Cal. 1986) (enjoining use of "DOGIVA,""CATIVA," and silver foil trade dress to market high-end pettreats), aff'd mem., 830 F.2d 197 (9th Cir. 1987).

(79.) Deven R. Desai, Speech, Citizenry, and the Market: ACorporate Public Figure Doctrine, 98 Minn. L. REV. 455 (2013); Tushnet,supra note 75.

(80.) S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483U.S. 522, 539-41 (1987); see also United States v. Alvarez, 132 S. Ct.2537, 2547 (2012) (distinguishing S.F. Arts & Athletics on theground that the statute at issue there prohibited false invocation ofthe Olympic mark for unauthorized material gain); id. at 2559 (Alito,J., dissenting) ("It is well recognized in trademark law that theproliferation of cheap imitations of luxury goods blurs the signal givenout by the purchasers of the originals." (quoting William M. Landes& Richard A. Posner, Trademark Law: An Economic Perspective, 30 J.L.& Econ. 265, 308 (1987)) (internal quotation marks omitted)).

(81.) Communications Decency Act, Pub. L. No. 104-104 [section]509,110 Stat. 56,138 (1996) (codified as amended at 47 U.S.C. 230(c)(1)(2012)).

(82.) See Stratton Oakmont, Inc. v. Prodigy Servs. Co., No.31063/94, 1995 WL 323710 (N.Y. Sup. Ct. Dec. 11, 1995) (holding a"family oriented" online service liable as publisher oflibelous statements because it exercised some editorial control over thecontent it served), superseded by statute, Communications Decency Act of1996, Pub. L. No. 104-104 [section] 509, 110 Stat. 56, 138; 141 Cong.Rec. H8468-70 (daily ed. Aug. 4, 1995) (statement of Rep. Cox); RobertCannon, The Legislative History of Senator Exon's CommunicationsDecency Act: Regulating Barbarians on the Information Superhighway, 49FED. COMM. L.J. 51 (1996). For representative commentary on the FirstAmendment implications of defamation liability for online serviceproviders, see Floyd Abrams, First Amendment Postcards from the Edge ofCyberspace, 11 St. JOHN'S J. LEGAL COMMENT. 693 (1996); and BruceW. Sanford & Michael J. Lorenger, Teaching an Old Dog New Tricks:The First Amendment in an Online World, 28 Conn. L. Rev. 1137 (1996).

(83.) See David Lukmire, Note, Can the Courts Tame theCommunications Decency Act? The Reverberations of Zeran v. AmericaOnline, 66 N.Y.U. Ann. SURV. Am. L. 371 (2010). For discussion of theCDA's sweeping effects on online harassment, see DANIELLE KEATSCITRON, Hate Crimes in Cyberspace 170-77 (2014).

(84.) Eldred v. Ashcroft, 537 U.S. 186, 206-07 (2003).

(85.) Brief of George A. Akerlof et al. as Amici Curiae in Supportof Petitioners at 5-7, Eldred, 537 U.S. 186 (No. 01-618).

(86.) See Jessica Litman, Copyright, Compromise and LegislativeHistory, 72 CORNELL L. Rev. 857 (1987); Jessica Litman, CopyrightLegislation and Technological Change, 68 OR. L. REV. 275 (1989).

(87.) For discussion of the latitude that formerly existed fornonexploitative personal uses, see Jessica Litman, Lawful Personal Use,85 Tex. L. Rev. 1871 (2007).

(88.) See 17 U.S.C. [section] 1201(a)(2), (b) (2012).

(89.) See id. [section] 512, 1201(f) (reverse engineering); id.[section] 1201(g) (encryption research); id. [section] 1201[c] (securitytesting). The exceptions benefiting individuals and nonprofitinstitutions are far more limited in scope. See id. [section] 512(b),(h) (immunizing service providers from suits over mistaken takedowns andallowing suits against complainants only in cases of "knowing[]material]] misrepresentation]"); id. [section] 1201(d) (allowingcircumvention by nonprofits, but only if they already know how); id.[section] 1201[c] (allowing circumvention of personal profilingcapabilities under limited circ*mstances).

(90.) See Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg, L.P., 756F.3d 73 (2d Cir. 2014) (reproduction and dissemination by news serviceof audio recording discussing market performance); Cariou v. Prince, 714F.3d 694 (2d Cir. 2013) (appropriation by celebrity artist ofdocumentary artist's photographs as the basis for a series ofartworks); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4thCir. 2009) (reproduction of student papers for use in automated tool todetect plagiarism); Perfect 10, Inc. v. Amazon, Inc., 508 F.3d 1146 (9thCir. 2007) (reproduction by an Internet search engine of"thumbnail" versions of copyrighted photos); Bill GrahamArchives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006)(reproduction of Grateful Dead concert posters in a book about theband); Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) (reproduction bycelebrity artist of a commercial photographer's work as part of apainting); Sony Computer Entm't, Inc. v. Connectix Corp., 203 F. 3d596,608 (9th Cir. 2000) (copies of computer software made while reverseengineering the plaintiff's game platform to create a competingplatform); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir.1992) (copies of computer software made while reverse engineering theplaintiff's game platform to create compatible games); AuthorsGuild, Inc. v. Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013)(reproduction and digitalization of copyrighted books to permitfull-text search), appeal docketed, No. 13-4829 (2d Cir. Dec. 23, 2013).But see Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014)(holding that nonprofit libraries' reproduction and display ofdigital book scans for purposes of search, disability access, andpreservation was paradigmatic fair use).

(91.) For discussion on the uses and abuses of the Special 301process, see Gabriel J. Michael, Special 301: Is It Effective?, ToPROMOTE THE PROGRESS? (June 5, 2014), http://topromotetheprogress.wordpress.com/2014/06/05/special-301-is-it-effective/ [http://perma.ee/ MCX5-FHN9]; Gabriel J. Michael, Special 301: ThePolitics of Listings, To PROMOTE THE PROGRESS? (June 12, 2014),http://topromotetheprogress.wordpress.com/2014/ 06/12/special-301-the-politics-of-listings/ [http://perma.cc/3CBQ-PXXD]. Fordiscussion of industry influence in trade negotiations, see MargotKaminski, The Capture of International Intellectual Property Law Throughthe U.S. Trade Regime, 87 S. CAL. L. Rev. 977 (2014). For a graphicalrepresentation of the imbalance, see Christopher Ingraham & HowardSchneider, Industry Voices Dominate the Trade Advisory System, WASH.POST (Feb. 27, 2014), http://www. Washingtonpost.com/wp-srv/special/business/trade-advisory-committees/[http://perma.cc/7H DQ-E8D3].

(92.) Compare The Copyright Term Extension Act of 1995: HearingBefore the S. Comm, on the Judiciary, 104th Cong. 55-58 (1995)(statements of Bob Dylan, Don Henley, Carlos Santana, and StephenSondheim), and Pre-1978 Distribution of Recordings Containing MusicalCompositions; Copyright Term Extension; and Copyright Per ProgramLicenses: Hearing Before the Subcomm. on Courts and Intellectual Prop,of the H. Comm, on the Judiciary, 105th Cong. 27-29 (1997) (statement ofJulius Epstein, screenwriter of "Casablanca"), with The Roleof Voluntary Agreements in the U.S. Intellectual Property System:Hearing Before the Subcomm. on Courts, Intellectual Prop., and theInternet of the H. Comm, on the Judiciary, 113th Cong. 12-25 (2013)(statement of Cary Sherman, Chairman & CEO, Recording IndustryAssociation of America), and Music Licensing Under Title 17: HearingBefore the Subcomm. on Courts, Intellectual Prop, and the Internet ofthe H. Comm, on the Judiciary, 113th Cong. (2014) (statement of DavidIsraelite, President & CEO, National Music Publishers Association),available at http://perma.cc/DCK7-V3XE.

(93.) Golan v. Holder, 132 S. Ct. 873, 889 (2012) ("Fullcompliance with Berne, Congress had reason to believe, would expand theforeign markets available to U.S. authors and invigorate protectionagainst piracy of U.S. works abroad, thereby benefittingcopyright-intensive industries stateside and inducing greater investmentin the creative process." (citation omitted)).

(94.) Members, COPYRIGHT ALLIANCE,http://www.copyrightalliance.org/members [http:// perma.cc/DQ7U-N64J](last visited Mar. 20, 2015).

(95.) See, e.g., Susan Crawford, First Amendment Common Sense, 127Harv. L. Rev. 2343, 2389-91 (2014); Jedediah Purdy, NeoliberalConstitutionalism: Lochnerism for a New Economy, 77 Law & CONTEMP.PROBS. 195 (2014); Richards, supra note 4.

(96.) Lochner v. New York, 198 U.S. 45, 53 (1905); see HORWITZ,supra note 66, at 9-31.

(97.) See Fair Credit Reporting Act, 15 U.S.C. [section] 1681e(b)(2012) (requiring "reasonable procedures to assure maximum possibleaccuracy"); id. [section] 1681h(e) (preempting actions fordefamation, invasion of privacy, and negligence except to the extentauthorized by the federal law); id. [section] 1681n(a) (authorizingstatutory damages only for willful noncompliance); Sarver v. ExperianInfo. Solutions, 390 F.3d 969, 972 (7th Cir. 2004) (holding thatrequirement to investigate anomalies would be unreasonable "giventhe enormous volume of information Experian processes daily').

(98.) See Oscar H. Gandy, Jr., The Panoptic Sort: A PoliticalEconomy of Personal Information 95-102 (1993); Robert D. Manning, CreditCard Nation: The Consequences of America's Addiction to Credit11-30 (2000).

(99.) Company Overview, GOOGLE,https://www.google.com/about/company/ [http://perma.cc/ Q7H4-APSE] (lastvisited Mar. 20, 2015).

(100.) See Mark Andrejevic, iSpy: Surveillance and Power in theInteractive Era 93134 (2007).

(101.) For a good overview, see STAFF OF S. COMM. ON COMMERCE, SCI.& TRANSP., 112TH Cong., A Review of the Data Broker Industry:Collection, Use, and Sale of Consumer Data for Marketing Purposes (Comm.Print 2013).

(102.) Karl Polanyi, The Great Transformation: The Political andEconomic Origins of Our Time 71-75 (1957).

(103.) I elaborate the concept of the biopolitical public domainmore fully in Cohen, supra note 70; Julie E. Cohen, The BiopoliticalPublic Domain (2015) (unpublished manuscript) (on file with author).

(104.) See Anupam Chander & Madhavi Sunder, The Romance of thePublic Domain, 92 CALIF. L. Rev. 1331 (2004) (discussing the publicdomain as a colonial construct); Cohen, supra note 52 (discussing thepublic domain as a spatial construct); Jessica Litman, The PublicDomain, 39 EMORY L. J. 965 (1990) (discussing the public domain as anepistemological construct).

(105.) See Frank Pasquale, The Black Box Society: The SecretAlgorithms Behind Money and Information 19-25, 82-83, 191-93(forthcoming 2015).

(106.) For descriptions of these practices, see generallyANDREJEVIC, supra note 100; PASQUALE, supra note 105; and Julie E.Cohen, What Privacy Is For, 126 Harv. L. Rev. 1904, 1915-18(2013).

(107.) For a partial sampling, see In re Google Inc. CookiePlacement Consumer Privacy Litig., 988 F. Supp. 2d 434 (D. Del. 2013);In re Google Android Consumer Privacy Litig., No. 11-MD-02264 JSW, 2013WL 1283236 (N.D. Cal. Mar. 26, 2013); Yunker v. Pandora Media, No.11-CV-03113 JSW, 2013 WL 1282980 (N.D. Cal. Mar. 26, 2013); In reLinkedin User Privacy Litig., 932 F. Supp. 2d 1089 (N.D. Cal. 2013); Inre Google Inc. Privacy Policy Litig., No. C 12-01382 PSG, 2012 WL6738343 (N.D. Cal. Dec. 28, 2012); In re Sony Gaming Networks &Customer Data Sec. Breach Litig., 903 F. Supp. 2d 942 (S.D. Cal. 2012);In re iPhone Application Litig., 844 F. Supp. 2d 1040 (N.D. Cal. 2012);Cohen v. Facebook, Inc., No. C 10-5282 RS, 2011 WL 5117164 (N.D. Cal.Oct. 27, 2011); Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090 (N.D. Cal.2011); and see also In re Google Inc. Gmail Litig., No. 13-MD-02430-LHK,2014 WL 1102660 (N.D. Cal. Mar. 18, 2014) (dismissing on ground ofinsufficient commonality among class members).

(108.) For representative examples, see LARRY DOWNES, A RATIONALRESPONSE TO THE PRIVACY "Crisis" (Cato Inst. Policy AnalysisNo. 716, 2013), available at http://perma.cc/ DNX3-7X9K; Adam Thierer,The Problem with Obama's "Let's Be More LikeEurope"Privacy Plan, FORBES (Feb. 23, 2012, 3:37 PM),http://www.forbes.com/sites/adamthierer/2012/02/ 23/the-problem-with-obamas-lets-be-more-like-europe-privacy-plan/[http://perma.cc/9M8Z AAFM].

(109.) See generally Trotter Hardy, Criminal CopyrightInfringement, 11 Wm. & MARY BILL RTS. J. 305 (2002).

(110.) See, e.g., U.S. DEPT. OF JUSTICE, PRO IP ACT: ANNUAL REPORTFY 2012 (2012), available at http://perma.cc/J3JH-NNUM; Fed. BUREAU OFINVESTIGATION, PRO IP ACT ANNUAL REPORT 2012 (2013), available athttp://perma.cc/RCT9-YWNG.

(111.) Copyright Felony Act, Pub. L. No. 102-561, 106 Stat. 4233(1992) (codified as amended at 18 U.S.C. [section] 2319 (2012)); ViolentCrime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,[section] 320104, 108 Stat. 1796, 2110-2111 (1994) (codified as amendedat 18 U.S.C. [section] 2320 (2012)); Anticounterfeiting ConsumerProtection Act of 1996, Pub. L. No. 104-153, [section] 5, 110 Stat.1386, 1387 (codified as amended at 18 U.S.C. [section] 2320 (2012)); NoElectronic Theft (NET) Act, Pub. L. No. 105-147, [section] 2, 111 Stat.2678, 2678-80 (1997) (codified as amended at 18 U.S.C.[section][section] 2319, 2319A, 2320 (2012)); Intellectual PropertyProtection and Courts Amendments Act of 2004, Pub. L. No. 108-482,[section] 102, 118 Stat. 3912, 3912-15 (codified as amended at 18 U.S.C.[section] 2318 (2012)); Family Entertainment and Copyright Act of 2005,Pub. L. No. 109-9, [section][section] 102-103, 119 Stat. 218, 218-21(codified as amended at 18 U.S.C. [section][section] 2319, 2319B(2012)); Stop Counterfeiting in Manufactured Goods Act, Pub. L. No.109-181, 120 Stat. 285 (2006) (codified as amended at 18 U.S.C.[section] 2320 (2012)); Prioritizing Resources and Organization forIntellectual Property Act, Pub. L. No. 110-403, [section][section]202-206, 122 Stat. 4256, 4260-63 (2008) (codified as amended at 18U.S.C. [section][section] 2318-2320, 2323 (2012)); Food and DrugAdministration Safety and Innovation Act, Pub. L. No. 112-144, [section]717, 126 Stat. 993, 1076-77 (2012) (codified as amended at 18 U.S.C.[section] 2320 (2012)); see also Digital Millennium Copyright Act, Pub.L. No. 105-304, [section][section] 1201-1204, 112 Stat. 2860, 2863-76(1998) (codified as amended at 17 U.S.C. [section] 1204 (2012)).

(112.) Economic Espionage Act of 1996, Pub. L. No. 104-294,[section] 101, 110 Stat. 3488, 3488-91 (codified as amended at 18 U.S.C.[section][section] 1831-1839 (2012)).

(113.) Digital Millennium Copyright Act, Pub. L. No. 105-304,[section] 202, 112 Stat. 2860, 2879-80, 2885 (1998) (codified as amendedat 17 U.S.C. [section] 512(c)(1), (j)(l)(B)(ii) (2012)).

(114.) See Metro-Goldwyn-Mayer v. Grokster, 545 U.S. 913 (2005)(recognizing theory of secondary liability based on inducing copyrightinfringement); Columbia Pictures Indus, v. Fung, 710 F.3d 1020 (9th Cir.2013) (affirming summary judgment on contributory infringement liabilityfor torrent site operator based on finding of sufficient causalconnection to infringement by users of BitTorrent protocol); In reAimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003) (affirmingfinding of willful blindness sufficient to support contributoryinfringement liability based on design of defendant's file-sharingplatform).

(115.) See UMG Recordings v. Shelter Capital Partners, LLC, 713F.3d 1006, 1032 (9th Cir. 2013) (rejecting speculative theory of jointcontrol over web hosting platform by venture capital investors); Perfect10, Inc. v. Visa Int'l Serv. Ass'n, 494 F.3d 788 (9th Cir.2007) (holding that third-party payment processor lacked required causalconnection to infringement and that right to terminate relationshipswith hosting sites did not equal right and ability to control theinfringing conduct).

(116.) See Stop Online Piracy Act (SOPA), H.R. 3261, 112th Cong.,1st Sess. (2011); Preventing Real Online Threats to Economic Creativityand Theft of Intellectual Property Act (PIPA), S. 968, 112th Cong, (asamended May 26, 2011); SOPA/PIPA: Internet Blacklist Legislation,ELECTRONIC FRONTIERFOUND.,https://www.eff.org/issues/coica-internetcensorship-and-copyright- bill[http://perma.cc/79HK-45UD] (last visited Mar. 20, 2015).

(117.) Jonathan Weisman, Web Rises Up to Deflect Bills Seen asThreat, N.Y. TIMES, Jan. 19, 2012, at Al; David A. Fahrenthold, SOPAProtests Shut Down Web Sites, WASH. POST (Jan. 18, 2012),http://www.washingtonpost.com/politics/sopa-protests-to-shut-down-web-sites/2012/ 01/17/gIQA4WY16P_story.html [http://perma.cc/S4Z7-QLTE];Timothy B. Lee, SOPA Protest by the Numbers: 162M Pageviews, 7 MillionSignatures, ARS TECHNICA (Jan. 19, 2012, 1:45 PM),http://arstechnica.com/tech-policy/2012/01/sopa-protest-by-the-numbers-162m-pageviews7-million-signatures/ [http://perma.cc/V3E9-HFHB].

(118.) See Jennifer Martinez et al., SOPA's Surprise HollywoodEnding, POLITICO (Jan. 20, 2012,9:28 PM),http://www.politico.com/news/stories/0112/71746.html[http://perma.cc/A4N77Q5L],

(119.) See Letter from Hillary Rodham Clinton, Sec'y of State,to Rep. Howard L. Berman, (Oct. 25, 2011), available athttp://perma.cc/K9LP-SYRA (stating that goals of advancing Internetfreedom and enforcing intellectual property rights online areconsistent); Macon Phillips, Obama Administration Responds to We thePeople Petition on SOPA and Online Piracy, WHITE HOUSE BLOG (Jan. 14,2012, 8:09 AM), http://www.whitehouse.gov/blog/2012/01/14/obama-administration-responds-we-people-petitions-sopa-and-online-piracy [http://perma.cc/TRS-8Y4A] ("[T]he Administration calls onall sides to work together to pass sound legislation this year thatprovides prosecutors and rights holders new legal tools to combat onlinepiracy originating beyond U.S. borders while staying true to theprinciples outlined ... in this response."); see also HillaryRodham Clinton, Sec'y of State, Remarks on Internet Freedom (Jan.21,2010), http://www.state.gov/secretary/20092013clinton/rm/2010/01/135519.htm [http://perma.cc/TR2J-P8BS] ("Those who use the internetto ... distribute stolen intellectual property cannot divorce theironline actions from their real world identities.").

(120.) Charles Arther & Josh Halliday, WikiLeaks Fights to StayOnline After US Company Withdraws Domain Name, Guardian (Dec. 3, 2010,2:54 PM), http://www.theguardian.com/media/blog/2010/dec/03/wikileaks-knocked-off-net-dns-everydns[http://perma.cc/UM7AUBLD] (citing several sources suggesting thatEveryDNS.net dropped WikiLeaks under governmental pressure).

(121.) Id.; Ashlee Vance, WikiLeaks Struggles to Stay Online afterAttacks, N.Y. TIMES, Dec. 3, 2010, at A8 (noting that Amazon.com kickedWikiLeaks off its systems after inquiries from an aide to Sen. Joseph I.Lieberman); Bianca Bosker, PayPal Admits State Department PressureCaused It to Block WikiLeaks, HUFFINGTON POST (Dec. 8, 2010, 10:17 AM),http:// www.huffingtonpost.com/2010/12/08/paypal-admits-us-state-de_n_793708.html [http://perma. cc/T6QV-W2QQ].

(122.) Section of Intellectual Prop. Law, Am. Bar Ass'n, ASection White Paper: A Call for Action for Online Piracy andCounterfeiting Legislation (2014), available athttp://perma.cc/9GCY-3D3D.

(123.) Lori Wallach & Ben Beachy, Obama's Covert TradeDeal, N.Y. TIMES, June 3, 2013, at A21. For a careful analysis of thedraft intellectual property provisions of the Trans-Pacific Partnershipagreement--leaked by WikiLeaks--concluding that the draft does not yetgo that far, see Jonathan Band, The SOPA-TPP Nexus, 28 Am. U. Int'LL. Rev. 31 (2012).

(124.) For information about the graduated response initiative, seeCENTER FOR COPYRIGHT INFORMATION, http://www.copyrightinformation.org/[http://perma.cc/YX4K-NQ4Q] (last visited Mar. 20, 2015); and see alsoAnnemarie Bridy, Graduated Response American Style: "SixStrikes" Measured Against Five Norms, 23 FORDHAM INTELL. PROP.MEDIA & Ent. L. J. 1 (2012) (evaluating the initiative in light ofnorms of fairness and due process).

(125.) For some examples, see HORWITZ, supra note 66, at 9-31.

(126.) Frederick Schauer, Harm(s) and the First Amendment, 2011SUP. CT. REV. 81, 96-97.

JULIE E. COHEN, [c] Julie E. Cohen. Professor, Georgetown Law.Thanks to Kiel Brennan-Marquez, David Cole, Deven Desai, Mike Madison,Allegra McLeod, Neil Richards, Pierre Schlag, Mike Seidman, JessicaSilbey, Rebecca Tushnet, Tim Zick, and participants in the GeorgetownLaw Faculty Workshop for comments on an earlier version and to AislinnAffinito, Alex Moser, and Sean Quinn for research assistance.