Cornell Law Review Volume 98 Issue 5

Virtual Assembly

This Article provides one of the first scholarly considerations of the constitutional boundaries for online groups. It explores both why and how we should protect these groups by asking two related questions. The first question is theoretical: Do online groups implicate the kinds of values that warrant elevated constitutional protection? The second question is doctrinal: What is the best framework for providing constitutional protection to these groups?

This Article argues that we should protect online groups because they advance important First Amendment values and because the line between our offline and our online groups is collapsing. Turning to the doctrinal question, the Article draws from both historical sources and analogies to free speech doctrine to show that the First Amendment’s right of assembly is capacious enough to protect online groups. The Article concludes with some tentative applications of “virtual assembly” to legal controversies: an online forum that excludes on the basis of gender, a state law that prohibits private Facebook communications between teachers and students, an online church that expels dissident members, and an online dating service that makes only opposite-sex matches.

This Article makes four contributions to emerging scholarship at the nexus of constitutional law, cyberlaw, sociology, and political theory. First, it demonstrates the normative and prudential reasons for protecting online groups. Second, it shows how expression includes the acts of exclusion, embrace, expulsion, and establishment (an observation that calls into question the Supreme Court’s category of “expressive association”). Third, it explains how the First Amendment’s right of assembly applies in online contexts. Finally, it introduces the concept of nested groups—online groups that exist within other structural frameworks, such as Facebook and Internet Service Providers.

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