Silencing content providers: they're coming from everywhere and under every theory

Abstract

With the expansion of the Internet it is now possible for almost everyone to be a publisher. With ubiquity of available content, often that which is acceptable to one is offensive to another. This article examines attempts to use the legislative process and litigation in order to suppress speech, most often Internet content. First, several recent US Supreme Court cases involving several statutes promulgated by the Congress to ban and criminalize pornographic Internet content, or to regulate access to such content are discussed. The article then examines the use of copyright infringement and trademark infringement litigation to attempt to suppress speech, as opposed to preventing a competitor from using the plaintiff's intellectual property to his advantage. Next, the growing trend of asserting the arcane and seldom used ‘trespass to chattels’ tort against parties who send unwanted content to employees, or gather information from websites is discussed. Finally, the issues of jurisdiction and choice of law are briefly visited. With content on the Internet being made available at any time, anywhere throughout the world the decision of which court should hear the case and whose law should apply must be considered, not only during litigation, but before posting content, as well.