Brewing Free Speech scholarship
posted by Tim Wu
Free Speech scholarship, unsurprisingly, tends to focus of government censorship. An interesting new area of scholarship centers on the relationship between free speech and private or public rules and norms regulating discrimination in carriage.
Consider that, by law, your mobile phone can reach any other in the United States. Most of us don’t think of that as a speech rule, but it is of a kind. Similarly, Net Neutrality, which disallow the blocking of web sites, affect speech by effectively banning private censorship. When you think about it, on a day-to-day basis, these kind of rules may actually affect the speech environment of the United States more than the First Amendment. That could be otherwise, and the Government has the capability to be a major controller of speech, but often it is just a bit player.
I’ve noticed a group of new and interesting papers on this topic. Stuart Benjamin has one, entitled “Transmitting, Editing, and Communicating: Determining What ‘the Freedom of Speech’ Encompasses” coming out in Duke L. J. (You can probably email him for it). He is interested in what happens if you subject common carriage or net neutrality rules to full first amendment scrutiny. His basic theory is that transmissions shouldn’t be considered speech for purposes of the First Amendment. He is in a dialogue with, among others, Rob Frieden, and Moran Yemini, who have both written on this topic.
There is important work also from Marvin Ammori, a young professor who spent time in DC litigating Net Neutrality, and wrote an interesting early paper on this. He now has a broader and fascinating new draft “First Amendment Architecture.” He begins “The right to free speech is meaningless without some place to exercise it.” Ammori argues that a critical part of free expression are governmental doctrines that make room for speech. The piece brings together older rules, like public forum rules, and newer, like the various access and non-discrimination rules in telecom, and says they are central to American free speech doctrine.
There are probably other works in this line that I’ve missed, but its an interesting new line of scholarship.
March 24, 2011 at 1:02 pm
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Responses (5)
Annon - March 24, 2011 at 1:46 pm
http://www.amazon.com/Beyond-First-Amendment-Politics-Pluralism/dp/0801881730/ref=sr_1_1?ie=UTF8&s=books&qid=1300988693&sr=8-1
This book might be of interest to those looking to study this area. It is a book written by a professor I had a few years back. Enjoy.
Seth Finkelstein - March 24, 2011 at 2:27 pm
> Similarly, Net Neutrality, which disallow the blocking of web sites, affect speech by effectively banning private censorship.
How does this interact with Section 230(c)(2) of the CDA?
http://www.law.cornell.edu/uscode/47/usc_sec_47_00000230—-000-.html
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;
Jeff Blevins - March 25, 2011 at 3:29 pm
Here are a few more . . .
Blevins, J. L. (2010, Dec. 21). Protect Internet from corporate censorship. The Des Moines Register (p. 11A). Guest column for the opinion-editorial page.
Blevins, J. L., & Barrow, S. C. (2009). The Political Economy of Free Speech and Network Neutrality: A Critical Analysis. Journal of Media Law & Ethics, Vol. 1, Nos. 1/2 (pp. 27-48).
Blevins, J. L. (2007). The Political Economy of U.S. Broadcast Ownership Regulation and Free Speech after the Telecommunications Act of 1996. Democratic Communiqué, Vol. 21, No. 2 (pp. 1-22).
Nick Bramble - March 25, 2011 at 5:07 pm
Nice idea to gather the various folks working on these issues. My article analogizes Internet nondiscrimination rules to the equal access rules upheld in Rumsfeld v. FAIR:
Nicholas Bramble, Ill Telecommunications: How Internet Infrastructure Providers Lose First Amendment Protection, 17 Mich. Telecomm. Tech. L. Rev. 67 (2010). // http://www.mttlr.org/volseventeen/bramble.pdf
Tim WU - March 26, 2011 at 4:13 pm
While it seemed inappropriate in the post, I have written two things on this topic myself:
The Master Switch (2010)
The Second First Amendment Tradition, Brookings (2011)
The second one may be sort of hard to find, need to put it up somewhere. The first is a book.
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