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Abstract

The purpose of this comment is to analyze the potential First Amendment implications of the appearance of bomb-making instructions on the Web in the United States. Moreover, this comment will ultimately consider the notion that "because Brandenburg allows consideration of all the unique characteristics of the Web, there is no reason to formulate new jurisprudence merely because of new technology." Part II examines the seminal cases in the area of speech action, including Schenck v. United States, Hess v. Indiana, and Brandenburg v. Ohio, and the adulations and criticisms that resulted from these cases. Part III discusses the civil cases that applied Brandenburg to various forms of media. Part IV discusses criminal aiding and abetting cases in which the defendants sought First Amendment protection for instructions they disseminated to others on how to commit illegal acts. Part V focuses upon Rice v. Paladin Enterprises, Inc., which illustrates the civil and criminal approaches to incitement detailed in Parts III and IV and applied to the Web in Part VI. Part VI analyzes the problem of bomb-making instructions that appear on the Web within both civil and criminal contexts. Part VII explores some alternatives and implications of the problem by discussing ideas presented by constitutional scholars and court opinions. The conclusion of this comment is that in a potential civil case for tort damages, and in a potential criminal case for aiding and abetting, the current law is easily applied, and thus, there is no need for change in the existing incitement laws to better handle cases dealing with the characteristics of the Web.

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