Putting the Shock Value in First Amendment Jurisprudence: When Freedom for the Citizen-Journalist Watchdog Trumps the Right of Informational Privacy on the Internet

Putting the Shock Value in First Amendment Jurisprudence: When Freedom for the Citizen-Journalist Watchdog Trumps the Right of Informational Privacy on the Internet

Clay Calvert and Mirelis Torres · 13 Vand. J. Ent. & Tech. 323

Abstract

This Article, which takes the July 2010 ruling by the Fourth Circuit in Ostergren v. Cuccinelli as a point of departure, explores the growing tension between the First Amendment right of Free Speech and the nascent right to online informational privacy. The Article addresses the “shock value” in First Amendment jurisprudence, stretching from Cohen v. California and Texas v. Johnson through the recent ruling in Ostergren. The Article also examines the traditional watchdog function of the press increasingly performed on the Internet by so-called citizen-journalists akin to Betty Ostergren. The Article concludes that while the Fourth Circuit‟s decision in Ostergren is a victory both for the shock value in First Amendment jurisprudence and for the watchdog role played by citizen-journalists, the appellate court failed to adequately explore and distinguish between two strands within shock value cases. In particular, the Fourth Circuit failed to distinguish between speech that shocks because it violates norms of civil discourse–causing anger and emotional outrage (Cohen and Johnson)–and speech that shocks because it intrudes on financial security (Ostergren).