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Techno-Neutrality of Freedom of Expression in New Media Beyond the Internet: Solutions for the United States and Canada

From radio to telephone to television and now the Internet, the evolution of new media technology has soundly tested the value that society, through the law, places on freedom of expression. The law's reaction to new media technology mirrors society's reaction in many ways. Uneasiness of the power and breadth of a new media's expressive possibilities prompts reluctance in creating legal frameworks that address how the media will operate under current freedom of expression constitutional doctrine. Government attempts to regulate media have typically been driven by two goals: protection of the vulnerable from harmful expression and upholding the accessibility to a new mode of expression. These regulatory aims, by their operative nature, impinge on the right of freedom of expression. This paper is divided into four parts. Part I sketches an overview of the argument that constitutional cases involving freedom of expression in various media should approach American First Amendment questions without regard to the technical qualities of the medium carrying the expression. Various types ofmedia differ only in degree and the differences may be constitutionally irrelevant in many instances. The basic doctrines surrounding constitutional challenges to government attempts at regulating expression are explained. The Part ends with a proposal for a technologically neutral way of balancing the protection of expression with the government's regulatory goals. Part II demonstrates how the pitfalls of analogy, novelty, and timeliness have marred American First Amendment jurisprudence when courts focus primarily on distinctions between types of media. The Part is necessarily exhaustive for two reasons: firstly, to establish the historical patterns of difficulty that courts dealing with new media have encountered and secondly, to ground the parallel to Canadian freedom of expression doctrine which follows in Part: III. Part III offers a possible doctrinal approach for a technologically neutral analysis of freedom of expression cases by contrasting the American approach to new media with a possible Canadian jurisprudential solution using Canadian Charter of Rights and Freedoms doctrines. The expansiveness of the Charter's s. 2(b) freedom of expression protection coupled with the contextual balancing effect of s. 1 of the Charter provide a workable, if somewhat unpredictable, alternative for addressing the problems of freedom of expression in different media forms. Part N concludes with a call for the adoption of a techno-neutral methodology when confronting freedom of expression challenges with media. A Canadian balancing effect coupled with a contextual assessment of the affected expression may be the most effective procedure for achieving techno-neutrality for both American and Canadian courts dealing with freedom of expression in existing and evolving media.