"Internet exceptionalism" is the notion that the Internet is a special and unique communications medium to which special rules should apply. In the legal field, that notion is manifested in legal rules that have been crafted by judges, legislatures and regulators for application in situations involving Internet communications.
In some cases the creation of an Internet-specific rule has involved a deliberate policy choice to reject a traditional rule in favor of a new and sharply different rule applicable to the online environment. Section 230 of the Communications Decency Act is at the top of the list of such enactments. In other cases, judges struggling with the task of applying precedents to controversies arising in the Internet context have crafted Internet-specific rules on the fly. The so-called Zippo sliding scale for assessing personal jurisdiction in cases involving Web sites is the prime example in that category. Prof. Eric Goldman has written an article analyzing the phenomenon, including recent examples of enactments that are not only Internet-specific, but focus in on a particular kind of Web site, e.g., social networking sites. See Eric Goldman, The Third Wave of Internet Exceptionalism, (March 11, 2009). But some courts have rejected Internet exceptionalism, at least in certain contexts.
Late last week, the U.S. Court of Appeals for the Second Circuit included in its ruling on New York's revised attorney ethics rules on advertising an essay broadly rejecting the notion of Internet exceptionalism in cases involving the First Amendment, at least in the context presented. This is not the first time that the Second Circuit has questioned the need for an Internet-specific rule. In Best Van Lines, Inc. v. Walker (2d Cir. 2007), a panel of the court concluded that while the Zippo sliding scale is useful in assessing whether a party did business in New York, "it does not amount to a separate framework for analyzing Internet-based jurisdiction." See also the ruling in In re Cohen, (N.Y. Sup. Ct. N.Y. Cty Aug. 17, 2009), rejecting the argument that there are special rules applicable to defamatory statements made on a blog.
In Alexander v. Cahill, (2d Cir. Mar. 12, 2010), a panel consisting of Judges Walker and Calabresi (Judge Sotomayor was on the panel until her elevation to the U.S. Supreme Court) considered whether the New York ethics rule banning targeted attorney solicitation of accident victims in any media within 30 days of the accident was sufficiently narrowly tailored to survive constitutional scrutiny under applicable U.S. Supreme Court precedents. Noting that the rule would unquestionably survive constitutional review if it applied only to direct-mail solicitations, the panel concluded that the same analysis should be applied to all communications media, including the Internet. While recognizing that a "technology-specific approach" may be appropriate in some contexts, the court reasoned, it is not appropriate where there has been a merger of traditional and Internet communications channels:
In the context before us, we eschew a technology-specific approach to the First Amendment and conclude that New York’s moratorium provisions—as we construe them—survive constitutional scrutiny notwithstanding their applicability across the technological spectrum. We focus first on the potential differences among media as to the degree of affirmative action needed to be taken by the targeted recipient to receive the material Plaintiffs seek to send. For many media forms, it is about the same. Thus, to us, the affirmative act of walking to one’s mailbox and tearing open a letter seems no greater than walking to one’s front step and picking up the paper or turning on a knob on a television or radio.
It is true that the Internet may appear to require more affirmative acts on the part of the user in order to recover content (and is therefore perhaps entitled to greater First Amendment protection insofar as users are soliciting information, rather than being solicited). But regardless of whether this characterization was once accurate, it no longer is so. E-mail has replaced letters; newspapers are often read online; radio streams online; television programming is broadcast on the Web; and the Internet can be connected to television. See Christopher S. Yoo, The Rise and Demise of the Technology-Specific Approach to the First Amendment, 91 Geo. L.J. 245, 248 (2003) ("[T]he impending shift of all networks to packet switched technologies promises to cause all of the distinctions based on the means of conveyance and the type of speech conveyed to collapse entirely."). Furthermore, Internet searches do not bring a user immediately to the desired result without distractions. Advertisements may appear with the user’s search results; pop-up ads appear on web pages; and Gmail (Google’s e-mail service) creates targeted advertising based on the keywords used in one’s e-mail. In such a context, an accident victim who describes her experience in an e-mail might very well find an attorney advertisement targeting victims of the specific accident on her computer screen.
States are increasingly responding to these expanded and expanding roles of the Internet. Several already apply existing attorney professional responsibility rules to electronic and Internet advertisements and solicitations. See Amy Haywood & Melissa Jones, Navigating a Sea of Uncertainty: How Existing Ethical Guidelines Pertain to the Marketing of Legal Services over the Internet, 14 Geo. J. Legal Ethics, 1099, 1113 (2001) ("[I]t can be assumed that Internet use in the context of legal marketing will generally invoke all ethics rules relating to advertising and solicitation."). Texas and Florida have also added language to their disciplinary rules specifically to address attorney solicitation via the Internet. The New York Task Force Report reached the same conclusion. The Report repeatedly stated that "on-line advertisements and websites are not materially different than typical" printed advertisements, and that the rules should be enforced equally across media. (Task Force Report 54-55) In so doing, the Report "demonstrate[d] that the harms it recites are real and its restriction will in fact alleviate them to a degree." Florida Bar, 515 U.S. at 626 (quotation marks omitted).
Accordingly, we conclude that even acknowledging that differences among media may be significant in some First Amendment analyses, they are not so in this case. Three aspects of the Supreme Court’s analysis in Florida Bar are of particular relevance to our determination that the harms identified in that case, and put forth by Defendants in this case, are just as compelling with respect to targeted attorney advertisements on television, radio, newspapers, and the Internet as they are in justifying a ban on targeted mailings of attorney advertisements.
Alexander v. Cahill, Slip Op. at 27-30 (citations omitted),
