Yu on the History of New Technology and the Courts, Before the Internet

Peter K. Yu, Michigan State, has posted a new article, bringing the history of technology and its regulation into legal history, New Media at the Turn of the Century. The article is forthcoming in a symposium issue of the Minnesota Journal of Law, Science & Technology. Here's the abstract:

In recent cases, the United States Supreme Court has shown great care and vigilance in protecting free speech on the Internet. It is therefore common to take for granted the Court's protective stance on protecting free speech on the Internet. After all, the Internet is the new, new thing; it deserves the Court's utmost attention and protection. However, when these cases are juxtaposed with the Court's earlier cases concerning free speech and free press protections in the motion picture--the new, new thing of the past century--the two lines of cases reveal that the Court has taken a dramatic different approach in its treatment of new technologies. The study of these earlier cases not only enables one to gain a greater appreciation of the Court's current protective stance toward the Internet, but also leads one to wonder whether the Court's different approaches could be attributed to the complex interplay of law, technology, and society.

As part of the Symposium on a general theory of law and technology, this article begins by tracing the development of free speech and free press protections of motion pictures. Although the article recounts the painful history of movie censorship in the first half of the twentieth century, it does not seek to rehash the many arguments made by First Amendment scholars elsewhere. Rather, it offers a thick description to show that legal, technological, and social factors have both shaped and been shaped by each other and how a confluence of these factors affected the free speech and free press protections of motion pictures.

The article then offers three deterministic accounts to explain the Court's different treatment of the Internet: technological determinism, legal determinism, and social determinism. Showing that none of these accounts fully explains the Court's differing approach in the recent Internet cases, the article underscores the need for a holistic and integrated approach to the study of law, technology, and society. This Article concludes by offering some preliminary observations on what a general theory of law, technology, and society should and should not be about. It also explains the importance of the development of such a theory.