Reflexive Violence: Child Pornography and Terrorist Speech as First Amendment Carve-Outs
Volume 89, Online
By Merritt Baer [PDF]

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, terrorist speech is 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 that this Article terms “reflexive violence.” The Article demonstrates that the creation of reflexive violence as a justification, and the use of it as a logical device in theories of criminality, is both typical of cyberlaw and dangerous for the future of the First Amendment.

Merritt Baer, Internet and technology expert, graduate of Harvard College and Harvard Law School