Andrea M. Matwyshyn (The Wharton School, University of Pennsylvania) has posted Symbolic Harms on SSRN. Here is the abstract:
A speaker with compromised information security exposes listeners to risk of identity theft and unknowingly becoming part of organized crime operations. This risk can arise simply because the listener listens to the speaker’s message. Using the lens of systems theory, this article argues that these information security risks are disrupting the traditional model of transparent information processing created by the First Amendment. The relevant legal inquiry should ask whether the speech in question increases the listener’s information risk. A three-tiered regulatory model sensitive to core First Amendment concerns is proposed as one method of operationalizing these information security speech concerns into law. This new information security speech risk scale approach is then defended against likely First Amendment attacks relating to content neutrality, speaker knowledge, chilling effects and the identity of the speaker. Regulation of speech that incidentally exacerbates security risks is consistent with traditional First Amendment values and would survive intermediate scrutiny.