OLD-SCHOOL/NEW-SCHOOL SPEECH REGULATION

Abstract

New York Times Co. v. Sullivan and New York Times Co. v. United States (Pentagon Papers) are two famous examples of a great flowering of First Amendment jurisprudence during the middle of the twentieth century. The philosopher Alexander Meiklejohn declared Sullivan to be "an occasion for dancing in the streets." Sullivan recognized that "the central meaning of the First Amendment" was that the state could not punish criticism of public officials made without malice either directly through the criminal law or indirectly through civil damages for defamation. Pentagon Papers reaffirmed the central First Amendment principle against prior restraints; Justice Stewart's concurring opinion added that the government could not suppress disclosure of sensitive information unless the disclosure would "surely result in direct, immediate, and irreparable damage to our Nation or its people." Together these two decisions celebrated the crucial role of the press in a democratic society, and stood for the principle that the circulation of public discourse is crucial to democratic legitimacy. Half a century later, the impact of these two decisions has been weakened by significant changes in the practices and technologies of free expression, changes that concern a revolution in the infrastructure of free expression. That infrastructure, largely held in private hands, is the central battleground over free speech in the digital era.