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89 Temp. L. Rev. Online 1 (2017)

handle is hein.journals/tlro89 and id is 1 raw text is: ARTICLE REFLEXIVE VIOLENCE: CHILD PORNOGRAPHY AND TERRORIST SPEECH AS FIRST AMENDMENT CARVE-OUTS Merritt Baer* ABSTRACT The criminality of possession of child pornography is not dependent on situational factors and not weighed against a First Amendment interest but is instead explicitly carved out. Increasingly, I see terrorist speech falling within the same type of blanket outlaw regime. With great sovereignty and largely immune to criticism or review, the cybercrimes of child pornography possession and terrorist speech have moved from nominally analyzed for harm to patently outlawed, allowing law enforcement unique latitude in both investigation and enforcement of these prohibitions. The reflexive nature of this argument-that the criminality of the act resides in the definition of it-creates a self-reinforcing regime. I term this reflexive violence. Both the creation of reflexive violence as a justification and its use as a logical device in theories of criminality are typical of cyberlaw and dangerous for the future of the First Amendment. We owe these areas of speech the critical eye of constitutional consistency. We owe them particular caution because these are areas of speech Americans instinctively dislike. We must ensure that we construct Internet law that we can live with-not siloed in exceptions, but instead created with values that we can apply reasonably and consistently throughout our First Amendment jurisprudence. Merritt is an Internet and technology expert. She is a graduate of Harvard College and Harvard Law School, and resides in Washington, D.C. Views expressed herein are the personal views of the author and do not necessarily represent those of the U.S. Government or the FCC, for whom she works. Thank you to Jared Jamesson for his helpful comments and to Landon Paik for his patience. Thank you also to the Honorable John Sparks and Admiral Jamie Barnett for inspiring and looking out for me. 1

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