Balanced Scrutiny – The Necessity of Adopting a New Standard to Combat the Rising Harm of Invasive Technology

By Roosevelt S. Bishop, University of Maine School of Law, Class of 2023

ABSTRACT

The current First Amendment jurisprudence of strict scrutiny is wholly insufficient in fostering a healthy legal landscape regarding the freedom of speech in cyberspace. Technology is outpacing the legislative action to address these increasing harms that are prevalent in a society that practically lives online. Consequently, if we, as a society, are to effectively begin addressing the growing danger of the practically protected “expression” of Privacy Invaders, we need to first explore the possibility of a new tier of scrutiny; we need balance. This blueprint for balanced scrutiny will begin by highlighting the harms suffered unequally through the invasion of Intimate Privacy, a term originally coined by premiere privacy scholar Danielle Keats Citron. It will then touch on the historical standing and flexibility of the First Amendment. After edifying how cyber harassment and the First Amendment intersect, this study will conclude by proposing a new standard of judicial review to be utilized when addressing laws targeting cyber expression.  Continue reading →