First, I wanted to say thanks to Neal for his great insights. As he points out, my paper was a draft, and I am making some changes to it (in part to respond to the great comments I’ve received in places like this).

Second, I thought Urizenus’ final observation was interesting. To intelligently discuss a legal problem, we must first establish the current state of the law and identify why it’s defective. I do in fact offer a vision for the future, but I recognize that it’s not very showy because I think the current legal state reaches the correct policy result.

Eric.

In any case, I don’t think CNN and The Boston Globe etc. were saying that this was a 1st ammendment violation. Rather, I think the point those media outlets were making was this: “hey, wasn’t it really shitty of EA to silence someone for telling us what is going on in a Teen rated game.”

Sometimes we get caught up in something like the 1st ammendment itself and what it was directly designed to do (prevent federal gov from censoring us), and we forget about the deeper principle that it reflects. To wit: the powererful should not be free to silence those that are critical of their power. Having the de facto ability to silence criticism is not the same thing as having the right to silence criticism. Per norm, legislative bodies and the courts will be slow to recognize these rights, but I guess that shows you the difference between a Jack Balkin and an Eric Goldman. The former tells us where the law is going, and the latter tells us where it has been (without reflecting on why it was there).

Keep on keeping on, Neal.