To determine whether punishing the disclosure of illegally obtained information violates the First Amendment’s guarantee of freedom of speech, the Supreme Court currently applies a public concern test. Previously, the primary example of this conflict was the use of state or federal wiretapping statutes to punish television journalists broadcasting wire-tapped conversations. Today, the same statutes may punish individuals distributing similar recordings on the Internet. Because of the increasing importance of online communication and the increasing concern about off-line conduct being posted online, an appropriate First Amendment framework must balance the rights of the public to obtain information, the rights of the media to disclose information, and the rights of speakers to determine their audience. The public concern test fails in this endeavor. Instead, courts should balance the right to disclose the recording against the recorded speaker’s right to freedom of association. This approach rejects a dichotomy between public and private as ill-suited to online communication and instead focuses on protecting the rights of speakers to choose their audience. Grounded in the First Amendment’s protection of expressive association and anonymous speech, this Note proposes that the need to protect unpopular or minority viewpoints from unwanted online publicity justifies limits on the dissemination of certain types of recordings.
Meredith Regan, All the World Wide Web is a Stage: Free Speech, Expressive Association, and the Right to Choose Your Audience, 53 B.C.L. Rev. 1119 (2012), http://lawdigitalcommons.bc.edu/bclr/vol53/iss3/7