United States: The Constitutionality Of Criminalizing False Speech Made On Social Networking Sites In A Post-Alvarez, Social Media-Obsessed World

Co-authored by Former Associate Richard Crudo and Former Summer Associate Rahel Boghossian

I. INTRODUCTION

[A] nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.
— John F. Kennedy¹

Free speech has remained a quintessential american ideal, even as our society has moved from the ink quill to the touch screen.
— Marvin Ammori²

The emergence of social media led to profound changes in the way we interact with technology and each other. Every day — often without thinking — we use social media platforms for myriad purposes, including to keep family and friends apprised of developments in our lives, to reconnect with long-lost friends, to debate contemporary social and political issues, to conduct business, and even to find romance. It is unsurprising, therefore, that social media established itself as a worldwide phenomenon. According to current estimates, there are nearly 2.8 billion users of social media worldwide, and that number is expected to increase dramatically over the next several years.³ There are now hundreds of thousands of messages and posts on social media websites and mobile apps occurring every minute.⁴ As several Supreme Court Justices recently observed, social media is "embedded in our culture," and there is perhaps no other forum in history that is so accessible and in which speech is so prolific.⁵

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Originally published by the HARVARD JOURNAL OF LAW & TECHNOLOGY, Fall 2017

Louis W. Tompros is a lecturer on law at Harvard Law School and a partner in the Boston office of WilmerHale LLP. Richard A. Crudo is a former senior associate in the Washington, D.C. office of WilmerHale. All research and drafting of this article occurred while Mr. Crudo was employed at WilmerHale. Alexis Pfeiffer is an associate in the Palo Alto office of WilmerHale. Rahel Boghossian is a former summer associate in the Washington, D.C. office of WilmerHale.

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