Document Type
Book Section
Publication Date
5-2024
ISBN
9780520388543
DOI
10.1525/luminos.190
Abstract
Using sexual speech as its focal point, this essay explores the ambiguous legacy of cyber civil liberties and the ascent of alternative paradigms for digital freedom. From its inception, cyberlaw was characterized by a moral panic over sexual speech, pornography, and the protection of children familiar to First Amendment scholars. Important civil libertarian victories recognized that sexual speech and pornography were constitutionally protected from state intervention. The civil libertarian paradigm saw government regulation as the primary threat to free speech online, the marketplace as the more appropriate mechanism for regulating expression, and courts as the rightful arbiters of these disputes.
But while civil libertarians successfully rolled back much regulatory intervention to enforce moral codes online, their successes came at a price: the legitimation of private power over speech. Though the civil libertarian tradition would theoretically protect sexual speech, it has in practice shifted the locus of power over speech from public to private hands. The result is a form of “market” ordering that is nominally private but that, in fact, reflects the entrenched power and influence of conservative cultural politics. In turn, this burgeoning private authority has prompted both political and cultural realignments (the “techlash”) and a broader turning away from the civil libertarian approach to speech.
Amid attacks on women’s health, privacy, equality, and autonomy, it is tempting to look to online platforms as guardians of these values and defenders of First Amendment traditions. Yet platforms have been—and continue to be—ambivalent defenders of sexual speech. Today, private speech enforcement is far broader than what the state could accomplish through direct regulation. But in a moment of challenge to sexual freedom and equality, cyber civil libertarianism might—with renewed attention to private power—yet find another foothold.
First Page
153
Last Page
164
Num Pages
12
Publisher
University of California Press
Rights
This work is licensed under a Creative Commons (CC BY-NC-SA) license.
Editor
Meg Leta Jones & Amanda Levendowski
Book Title
Feminist Cyberlaw
Recommended Citation
Hannah Bloch-Wehba,
The Rise, Fall, and Rise of Cyber Civil Libertarianism,
in
Feminist Cyberlaw
153
(Meg Leta Jones & Amanda Levendowski eds., 2024).
Available at:
https://scholarship.law.tamu.edu/facscholar/2132
File Type
Included in
Civil Rights and Discrimination Commons, Constitutional Law Commons, First Amendment Commons, Supreme Court of the United States Commons