UC Berkeley

This Dissertation explores the tensions between free speech and regulation in an era of increased marketing and advertising, as well as the proliferation of digital services, including online marketplaces, social media platforms, and search engines, which facilitate the spread of both information and disinformation.Intellectual property rights and the First Amendment frequently exist in tension. Although the First Amendment prohibits the suppression of speech, the enforcement of trademark rights may restrict someone else’s speech. This conflict is also evident in the evaluation and management of user-generated content on social platforms. Because these regulatory regimes can prevent individuals from using particular language, they raise substantial free speech concerns. While scholars have acknowledged the tension among intellectual property, content moderation, and free expression, several critical areas remain insufficiently explored. Likewise, in recent years, there have been many new developments in these areas. This Dissertation integrates three papers that explore three such developments.The first paper in this Dissertation investigates whether trademark law provides adequate protection for speech, and if so, by what mechanisms. In 2023, the Supreme Court addressed a trademark fair use claim in Jack Daniel’s Properties v. VIP Products, a dispute involving a dog chew toy parodying the Jack Daniel’s whiskey bottle. The Ninth Circuit determined that, because the defendant’s use of the marks was expressive, infringement should be assessed using a specialized speech-protective test. The case presented the Supreme Court with a fundamental question regarding the relationship between trademark law and the First Amendment. This paper contends that the Court failed to establish a clear framework for determining when and how speech is protected under trademark law.The second paper examines the threat to free expression in the United States originating from foreign sources. Foreign free speech rules, particularly stringent European Union regulations on copyright, audiovisual content, hate speech, disinformation, and terrorist content, are increasingly shaping global content moderation, directly pressuring U.S. companies to adopt more restrictive, less speech-protective policies. This paper provides a novel perspective on analyzing the E.U. content moderation approach by placing the Digital Services Act (DSA) within the broader context of its interaction with previously adopted law applicable to online platforms.The third paper argues that, aside from free speech issues arising from traditional IP and online platforms’ activities, it is crucial to recognize the equally important, yet mostly overlooked, infrastructure-level moderation. Internet infrastructure actors, such as the Domain Name System (DNS), play a crucial role in the functioning of the internet and are increasingly receiving demands to moderate user content. This paper argues that they should steadfastly focus on the stability of the technical infrastructure and refrain from content moderation.Taken together, these studies provide a multifaceted analysis of the evolving dynamics surrounding free speech.