About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

27 Wm. & Mary Bill Rts. J. 1155 (2018-2019)
Prior Restraints in the Digital Age

handle is hein.journals/wmbrts27 and id is 1199 raw text is: PRIOR RESTRAINT IN THE DIGITAL AGE Ariel L. Bendor* and Michal Tamir** In this Article we argue that the digital revolution requires a reshaping of the Doctrine of Prior Restraint, which prohibits the implementation of any regulations that prevent the publication of speech prior to its distribution. We describe the prohibition on prior restraint of speech, its rationales and its exceptions; present the characteris- tics of the media in the digital age; suggest that the traditional design of the Doctrine does not fit these characteristics; and describe the reshaping that we propose in order to adapt the Doctrine to the age of the Internet and social networking. INTRODUCTION ................................................ 1156 I. THE CONSTITUTIONAL PROHIBITION ON PRIOR RESTRAINT AND ITS EXCEPTION S ............................................... 1158 II. THE COMPATIBILITY OF THE DOCTRINE OF PRIOR RESTRAINT WITH THE D IGITAL A GE ............................................... 1164 A. Increased Chilling Effect on Ordinary Speakers ................ 1165 B. The Lesser Impact of Journalistic Ethics on Ordinary Bloggers .... 1168 C. Ease and Immediacy of Publication .......................... 1170 D. Eternity, Broad Access, and Virality ......................... 1172 E. Technical Ability to Separate Protected from Unprotected Speech ... 1175 Il. ADAPTING THE DOCTRINE OF PRIOR RESTRAINT TO THE DIGITAL AGE .... 1176 A. Granting Judicial Injunctions and Removal Orders Concerning Speech in the New M edia .................................. 1176 B. Retraction and Injunction Requests as a Condition for Damages .... 1178 C ON CLUSION .................................................. 1180 * Dean of the School of Graduate Studies and Frank Church Professor of Legal Research, Bar-Ilan University. ** Associate Professor, Academic Center for Law and Science Law School, and President of the Israeli Law and Society Association. This Article was selected for the 2018 Freedom of Expression Scholars Conference, held at Yale Law School and hosted by the Abrams Institute for Freedom of Expression. We are grateful to our colleagues at the Conference, as well as to the participants of the 2018 Annual Conference of the International Society of Public Law (ICON-S), the 2018 joint meeting of the Law and Society Association and the Canadian Law and Society Association, and the Public Law and Human Rights Research Workshop at the Hebrew University Faculty of Law for many insightful comments, critiques, and suggestions. We owe special thanks to Margit Cohn, Patrick Kabat and Sonja R. West. We also thank Hili Eilam and Ofir Lebenthal for excellent research assistance, and the editors of the William & Mary Bill of Rights Journal, especially Kean Devine and Andrea Gumushian, for outstanding editorial work. 1155

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most