Balkin, Jack M. "The Future of Free Expression in a Digital Age," 36 Pepp. L. Rev. 707 (2009)


In 2011 and 2012, when I was a Ph.D. student, I conducted an interview series about free expression issues for the Harvard Law & Policy Review. I talked with lawyers and scholars who had made indelible marks on how people thought about the First Amendment's promise and limits. One of them was Jack M. Balkin, the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. I asked him to identify, in the final days of 2011, the most serious threat to free expression. He gave me three, the first of which was “the structure of the Internet.” He said he was concerned about “how governments regulate it” and how they “use it to engage in surveillance,” and he said the implications were vast and serious because of the Internet's standing as the “main conduit for many forms of expression.” Later, when I asked Balkin about Internet intermediaries and censorship, he said, “When we think about freedom of speech in a digital era, we're thinking about a complex of institutions and technologies that make expression possible.”