Featured Paper: Hacking Speech: Informational Speech And The First Amendment (Update)

The Northwestern University Law Review's newest issue (a special edition recognizing Northwestern Law faculty member Martin Redish) offers an interesting piece by Andrea M. Matwyshyn titled "Hacking Speech: Informational Speech And The First Amendment." Dr. Matwyshyn is an assistant professor of legal studies and business ethics at the University of Pennsylvania’s Wharton School, a faculty affiliate of the Center for Technology, Innovation and Competition at the University of Pennsylvania School of Law, and an affiliate Scholar of the Center for Internet and Society at Stanford Law School. The abstract appears below:

The Supreme Court has never articulated the extent of First Amendment protection for instructional or “informational” speech—factual speech that may be repurposed for crime. As technology advances and traditional modes of speech become intertwined with code speech, crafting a doctrine that expressly addresses the First Amendment limits of protection for informational speech becomes pressing. Using the case study of “vulnerability speech”—speech that identifies a potentially critical flaw in a technological system but may indirectly facilitate criminality—this Article proposes a four-part “repurposed speech scale” for crafting the outer boundaries of First Amendment protection for informational speech.

Author's Update: I recently contacted Dr. Matwyshyn to expand a bit on her recent article for our readers. Here is what she had to say:

My goal with the article was to highlight existing gaps in the Supreme Court's jurisprudence that will present challenges as courts face future cases dealing with instructional/informational speech and technology. I also sought to propose one possible model for these judicial determinations. As vulnerability exploit markets, 3D printer drivers and other controversial categories of code become more prevalent, it is inevitable that a case of the type considered in the article will end up before the Supreme Court. The Court will then need to decide when, if ever, code crosses the line from protected speech into a regulable commodity and when, if ever, a release of code later used as part of a criminal enterprise constitutes a basis for criminal prosecution. I hope to reinvigorate the legal conversation around these topics.