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NETWORK NEUTRALITY, FREE SPEECH, AND THE MYTH/ALLURE/SEDUCTIVE ...

    Free Speech and the Myth of the Internet as an Unintermediated

    Experience

    Christopher S. Yoo

    ABSTRACT

     In recent years, a growing number of commentators have raised concerns

    that the decisions made by Internet intermediariesincluding last-mile network

    providers, search engines, social networking sites, and smartphonesare

    inhibiting free speech and have called for restrictions on their ability to prioritize

    or exclude content. Such calls ignore the fact that when mass communications are

    involved, intermediation helps end users to protect themselves from unwanted

    content and allows them to sift through the avalanche of desired content that

    grows ever larger every day. Intermediation also helps solve a number of classic

    economic problems associated with the Internet. In short, intermediation of mass

    media content is inevitable and often beneficial. Calls to restrict intermediation

    have also largely overlooked the tradition (long recognized by the Supreme

    Court‘s First Amendment jurisprudence with respect to other forms of electronic

    communication) recognizing how intermediaries‘ exercises of editorial discretion

    promote free speech values. The debate also ignores the inauspicious/dubious

    history of past efforts to regulate the scope of electronic intermediaries‘ editorial

    discretion, which were characterized by the inability to develop coherent

    standards, a chilling effect on controversial speech, and manipulation of the rules

    for political purposes.

    Introduction ................................................................................................................................1

    I. The Benefits and Inevitability of Intermediation ....................................................................6

    A. Controlling Unwanted Content ........................................................................................7

    B. Identifying Good Content .............................................................................................. 11

    C. The Potential Benefits of Intermediation ........................................................................ 13

    1. Multiparty Bargaining .............................................................................................. 14

    2. Asymmetric Information .......................................................................................... 15

    3. Two-Sided Markets.................................................................................................. 18

    II. Judicial Decisions Recognizing Intermediation and Editorial Discretion as Promoting Important Free Speech Values ............................................................................................. 23

    A. Newspapers as the Free Speech Baseline ....................................................................... 24

    B. The Importance and Limits of Editorial Discretion Exercised by Broadcasters ............... 29

    1. The Importance of Broadcasters‘ Editorial Discretion .............................................. 30

    2. Red Lion: Scarcity as a Justification for Limiting Editorial Discretion ...................... 36

    3. Pacifica: Invasiveness and Accessibility as a Justification for Limiting Editorial

    Discretion ................................................................................................................ 45

    C. The Importance and Limits of Editorial Discretion Exercised by Cable Operators ......... 48

    1

     The Importance of Cable Operators‘ Editorial Discretion ......................................... 48 1.

    2. Turner I: Gatekeeper Control as a Justification for Limiting Editorial Discretion .... 56

    3. Denver: The Failed Analogy to Pacifica and the History of Regulation; .................. 60 D. Recognition of the Importance of Telephone Companies‘ Editorial Discretion .............. 62

    1. Dial-a-Porn .............................................................................................................. 63

    2. Ban on Telephone Companies‘ Provision of Cable Television Services.................... 65 E. Implications ................................................................................................................... 68 III. Lessons from Past Attempts to Regulate Editorial Discretion .............................................. 69 A. Time Brokerage: Regulating Too Little Editorial Discretion ......................................... 69 B. The Fairness Doctrine: Regulating Too Much Editorial Discretion ............................... 75 Conclusion ................................................................................................................................ 84

    2

    Free Speech and the Myth of the Internet as an Unintermediated Experience

    *Christopher S. Yoo

    INTRODUCTION

     When the Internet first emerged, many commentators hailed its potential to enable individuals to speak directly to mass audiences without having to rely on gatekeepers that had

    1long determined the substance of media content. The language of the Supreme Court‘s

    landmark decision in Reno v. ACLU echoed similar themes when it lauded how the Internet

    enables ―any person with a phone line‖ to become a ―pamphleteer‖ or a ―town crier with a voice

    2that resonates farther than it could from any soapbox.‖ Other commentators were less

    optimistic, arguing that regulation might be needed to guarantee that the Internet represented an

    3unintermediated experience in which speakers could communicate directly with audiences.

     In recent years, concerns about the role of Internet intermediaries have continued to grow. The debate initially focused on last-mile broadband providers‘ ability either to favor certain

    content or applications by giving them different levels of higher priority or by charging them

    * Professor of Law and Communication and Founding Director, Center for Technology, Innovation, and Competition, University of Pennsylvania. 1 The classic statement is Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 183438

    (1995). For other similar observations, see, e.g., Martin H. Redish & Kirk J. Kaludis, The Right of Expressive

    Access in First Amendment Theory: Redistributive Values and the Democratic Dilemma, 93 NW. U. L. REV. 103,

    113031 (1999); Kathleen M. Sullivan, First Amendment Intermediaries in the Age of Cyberspace, 45 UCLA L.

    REV. 1653, 167073 (1998); Eli M. Noam, Media Concentration in the United States: Trends and Regulatory

    Responses (1996), available at http://www.vii.org/papers/medconc.htm. 2 521 U.S. 844, 870 (1997). 3 See, e.g., Jerry Berman & Daniel J. Weitzner, Abundance and User Control: Renewing the Democratic

    Heart of the First Amendment in the Age of Interactive Media, 104 YALE L.J. 1619, 162829, 163637 (1995).

    1

    4 Commentators have also warned of search engines‘ ability to influence the different amounts.

    5speech environment by skewing search results. Other commentators have called for mandating

    open access to key file sharing and social networking technologies, such as YouTube, BitTorrent,

    6Facebook, and MySpace. Most recently, controversy has arisen over access to key device technologies, as demonstrated by the Federal Communication Commission‘s (FCC‘s) decision to open an investigation into Apple‘s decision not to carry certain voice applications developed by

    7Google. Still other commentators have focused not on these intermediaries‘ ability to shape

    Internet speech in accordance with their own views, but rather on the government‘s ability to

    impose regulation of intermediaries as an indirect means for imposing its own speech

    8preferences. Newspaper accounts constantly raise concerns about the business the manner in which intermediaries such as Comcast, Google, Facebook, and Apple select and prioritize

    9content and applications.

4 The initial debate focused on multiple ISP access to cable modem systems. See Mark A. Lemley &

    Lawrence Lessig, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, 48

    UCLA L. REV. 925 (2001). More recently, the debate has been framed in terms of network neutrality. See Net

    Neutrality: Hearing Before the S. Comm. on Commerce, Science & Transportation, 109th Cong. (2006) (statement

    of Prof. Lawrence Lessig), available at http://commerce.senate.gov/pdf/lessig-020706.pdf; Tim Wu, Network

    Neutrality, Broadband Discrimination, 2 J. ON TELECOMM. & HIGH TECH. L. 141 (2003). 5 See Oren Bracha & Frank Pasquale, Federal Search Commission? Access, Fairness, and Accountability in the Law of Search, 93 CORNELL. L. REV. 1149, 116179 (2008); Jennifer A. Chandler, A Right To Reach an

    Audience: An Approach to Intermediary Bias on the Internet, 35 HOFSTRA L. REV. 1095 (2007); Niva Elkin-Koren,

    Let the Crawlers Crawl: On Virtual Gatekeepers and the Right to Exclude Indexing, 26 U. DAYTON L. REV. 179

    (2001). 6 See Jack M. Balkin, Media Access: A Question of Design, 76 GEO. WASH. L. REV. 933, 93637 (2008);

    Rebecca Tushnet, Power Without Responsibility: Intermediaries and the First Amendment, 76 GEO. WASH. L. REV.

    986, 9961002 (2008). 7 See Reed Abelson, F.C.C. Looking into Rejection of Google App for iPhone, N.Y. TIMES, July 31, 2009, at

    B5. 8 See Michael D. Birnhack & Niva Elkin-Koren, The Invisible Handshake: The Reemergence of the State in

    the Digital Environment, 8 VA. J.L. & TECH. 6 (2003); Seth F. Kreimer, Censorship by Proxy: The First

    Amendment, Internet Intermediaries, and the Problem of the Weakest Link, 155 U. PA. L. REV. 11 (2006); Felix Wu,

    Collateral Censorship and the Limits of Intermediary Immunity (paper presented at 2009 Intellectual Property

    Scholars Conference, Aug. 7, 2009). 9 See, e.g., Saul Hansell, F.C.C. Vote Sets Precedent on Unfettered Web Usage, N.Y. TIMES, Aug. 2, 2008, at

    C1; Joe Nocera, Stuck in Google’s Doghouse, N.Y. TIMES, Sept. 13, 2008, at C1; Jeffrey Rosen, Google’s

    Gatekeepers, N.Y. TIMES MAG., Nov. 30, 2008, at 50; Jenna Wortham, Even Google Is Blocked with Apps for

    iPhone, N.Y. TIMES, July 28, 2009, at B1.

    2

     Although the discussion initially focused on the impact that intermediation would have on economic concerns, such as competition and innovation, more recently scholars have begun

    10framing their arguments against intermediation in terms of the First Amendment, although not

    in a literal sense, since under current law the First Amendment only restricts the actions of state

    11actors and thus does not restrict the actions of private actors. Instead, these commentators are

    more properly regarded as offering policy arguments that are informed by the free speech values embodied in the courts‘ First Amendment jurisprudence.

     As a general matter, proponents of regulating intermediaries contend that the speech interests of those seeking to transmit their content and applications through the network are the

    12only ones that matter. Such an approach might have been appropriate for person-to-person communications, as was the case with telephony and the applications that dominated the early Internet, such as e-mail or file transfers. When that is the case, the only free speech interests at

    13play are those of the end users, not the network providers. The modern Internet is no longer

10 See, e.g., DAWN C. NUNZIATO, VIRTUAL FREEDOM: NET NEUTRALITY AND FREE SPEECH IN THE INTERNET

    AGE (forthcoming 2009); Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 PEPP. L. REV. 427,

    42833 (2009); Bracha & Pasquale, supra note 5, at 11881201; Bill D. Herman, Opening Bottlenecks: On Behalf of

    Mandated Network Neutrality, 59 FED. COMM. L.J. 103, 11219 (2006); Randolph J. May, Net Neutrality Mandates:

    Neutering the First Amendment in the Digital Age, 3 I/S: J.L. & POLY FOR INFO. SOCY 197 (2007); Hannibal Travis,

    Of Blogs, Ebooks, and Broadband: Access to Digital Media as a First Amendment Right, 35 HOFSTRA L. REV. 1519,

    156481 (2007); Moran Yemeni, Mandated Network Neutrality and the First Amendment: Lessons from Turner

    and a New Approach, 13 VA. J.L. & TECH. 1 (2008). 11 See Balkin, supra note 10, at 430; NUNZIATO, supra note 10, at [113542]. Some scholars invoke theories

    that regard the First Amendment not as a negative limitation on government action, but rather as an affirmative obligation on the government to provide the foundations for meaningful exercise of free speech rights. See

    LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 16467 (1999); NUNZIATO, supra note 10, at _;

    Herman, supra note 10, at 112. To date, courts have yet to accept this alternative conception of the First Amendment. 12 See Ex parte Letter of Timothy Wu and Lawrence Lessig at 910 (filed Aug. 22, 2003), Inquiry

    Concerning High-Speed Access to the Internet Over Cable and Other Facilities, Declaratory Ruling and Notice of Proposed Rulemaking, 17 F.C.C.R. 4798 (2002) (CS Dkt. No. 0252), available at

    http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6514683884; Bracha & Pasquale, supra note 5, at 1200; Herman, supra note 10, at 113; Travis, supra note 10, at 1577. 13 For commentary employing this logic to conclude that telephony does not implicate the First Amendment, see HARVEY L. ZUCKMAN ET AL., MODERN COMMUNICATIONS LAW ? 2.3(c), at 18589 (1999); C. Edwin Baker,

    Commercial Speech: A Problem in the Theory of Freedom, 62 IOWA L. REV. 1, 42 n.144 (1976); Daniel Brenner,

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    simply a medium for person-to-person communications, however. It is now perhaps the dominant platform for mass communications. Mass media speech implicates a broader range of free speech values that includes interests of audiences and intermediaries as well as speakers.

     In determining how to balance this more complex array of values, we can take guidance from a body of knowledge that has not yet been fully explored in the literature: the Supreme Court‘s decisions applying the First Amendment to mass media, particularly those on the leading

    14 These precedents have forms of electronic communication (broadcasting and cable television).

    long recognized that the editorial discretion that intermediaries exercise promotes important free speech values by helping shield audiences from unwanted speech and by helping them identify and access desired content. With respect to the Internet, intermediaries help protect end users from exposure to spam, pornography, and viruses and other forms of malware while helping end users sift through the ever-growing avalanche of desired content that appears on the Internet

    15every day. Thus, courts have recognized that the editorial discretion exercised by search

    16engines and network providers implicates important free speech values. Indeed, unless one

    expects all end users to crawl the entire web themselves every day, even critics of intermediation

    17have recognized that it can be beneficial and may be inevitable.

Telephone Company Entry into Video Services: A First Amendment Analysis, 67 NOTRE DAME L. REV. 97, 125

    (1991); Angela J. Campbell, Publish or Carriage: Approaches to Analyzing the First Amendment Rights of

    Telephone Companies, 70 N.C. L. REV. 1071, 1131 (1992); Barbara A. Cherry, Misusing Network Neutrality to

    Eliminate Common Carriage Threatens Free Speech and the Postal System, 33 N. KY. L. REV. 483, 505 (2006);

    Susan Dente Ross, First Amendment Trump?: The Uncertain Constitutionalization of Structural Regulation Separating Telephone and Video, 50 FED. COMM. L.J. 281, 295 (1998). 14 Compelled speech. 15 See Eric Goldman, Search Engine Bias and the Demise of Search Engine Utopianism, 8 YALE J.L. & TECH.

    188 (2006); James Grimelmann, The Google Dilemma, 53 N.Y.L. SCH. L. REV. 939, 94445, 947 (2008/2009). 16 See Langdon v. Google, Inc. 474 F. Supp. 2d 622, 62930 (D. Del. 2007) (search engine); Comcast

    Cablevision of Broward County, Inc. v. Broward County, 124 F. Supp. 2d 685, 693 (S.D. Fla. 2000) (cable modem provider). 17 See Ellen P. Goodman, Media Policy and Free Speech: The First Amendment at War with Itself, 35

    HOFSTRA L. REV. 1211, 122023 (2007); Kreimer, supra note 8, at 17; Neil Weinstock Netanel, New Media in Old

    Bottles? Barron’s Contextual First Amendment and Copyright in the Digital Age, 76 GEO. WASH. L. REV. 952,

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     In short, the image of the Internet as an unintermediated experience in which speakers speak directly to audiences without passing through any gatekeepers is more myth than reality. The real question is not whether some actor, but rather which actor, will serve as the

    intermediary. The Supreme Court‘s First Amendment jurisprudence underscores that important

    18free speech considerations fall on both sides of the debate over intermediation. Moreover, in

    terms of deciding how that balance should be struck, the cases indicate that free speech considerations favor preserving intermediaries‘ editorial discretion unless the relevant technologies fall within a narrow range of exceptions, all of which the Court has found to be in applicable to the Internet. Indeed, Supreme Court precedent recognizes the importance of this editorial discretion even when intermediaries are simply serving as the conduit for the speech of

    19others. Moreover, the Court has long held that the fact that an intermediary may wield

    2021monopoly power and the danger that intermediaries may act as a private censor do not justify

    regulating their editorial discretion. That would substitute government decisionmaking for private decisionmaking, and although Supreme Court precedent and our free speech traditions are agnostic as to which private actor should serve as the intermediary, they are very clear that it should not be government, and when choosing between censorship by a private actor and the

    22government, the choice should always favor the former over the latter.

     The balance of this Article proceeds as follows: Part I discusses the inevitability of intermediation, both in terms of protecting end users from exposure to unwanted content and in

96869 (2008); Amit M. Schejter & Moran Yemini, “Justice, and Only Justice, You Shall Pursue”: Network

    Neutrality, the First Amendment and John Rawls’s Theory of Justice, 14 MICH. TELECOMM. & TECH. L. REV. 137,

    167 (2007); Yemeni, supra note 10, ?? 2124. 18 See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 22627 (1997) (Breyer, J., concurring in part). 19 See infra notes 86, 132, 203, 211, 213, 216 and accompanying text. 20 See infra notes 87, 100, 229 and accompanying text. 21 See infra notes 76, 7981, 82, 88, 92, 101, 117120, 134, 212 and accompanying text. 22 See, e.g., CBS v. DNC, 412 U.S. 94, 12425 (1973); THOMAS G. KRATTENMAKER & LUCAS A. POWE, JR.,

    REGULATING BROADCAST PROGRAMMING 327 (1994).

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    helping them identify and obtain access to desirable content. It also analyzes the manner in which intermediaries may be essential to solving certain bargaining problems that may prevent end users from obtaining access to the content they desire. Part II analyzes the judicial precedents recognizing the important free speech values played by intermediaries‘ exercise of

    editorial discretion, including the Supreme Court‘s decisions regarding newspapers, broadcasting,

    and cable television. It also explores lower court decisions on dial-a-porn recognizing how editorial discretion can promote free speech values even when exercised by common carriers such as telephone companies. Part III reviews the inauspicious history of past attempts to regulate the editorial discretion wielded by electronic intermediaries. Together these insights underscore how the Internet intermediaries‘ exercise of editorial discretion can foster rather than

    impede free speech values.

    HE BENEFITS AND INEVITABILITY OF INTERMEDIATION I. T

     When the Internet first arose, it served primarily as a medium for person-to-person communications, such as e-mail and file transfers. Although some forms of mass communications, such as newsgroups and electronic bulletin boards, did exist on the early Internet, they represented a relatively small proportion of overall Internet traffic. The nature of the Internet underwent a fundamental change during the mid-1990s. The privatization of the Internet backbone and the concomitant elimination of the commercialization restrictions triggered an explosion of mass media web content.

     The emergence of the Internet as an important medium for mass communications effected an equally important shift in the importance of Internet intermediaries, both in terms of helping end users filter out bad content and in helping them identify and obtain access to good content. In addition, the literature on the economics of intermediation underscores how intermediaries can

    6

    play key roles in helping end users obtain access to the content they desire. Together these insights demonstrate that intermediation should not be regarded as a necessary evil, as some commentators have suggested. On the contrary, intermediation can play a key role in helping end users obtain access to the content and applications they desire

    A. Controlling Unwanted Content

     The emergence of the Internet as an important source of mass media content has led end users to look to intermediaries to help insulate them against unwanted content (such as spam, malware, and pornography) and unwanted attacks (such as viruses, Trojans, and other forms of malware). By the late 1990s, such intermediation was generally performed by firewall and filtering software installed on the desktop computers through which end users connected to the

    23 Many commentators lauded filtering as the best way of ensuring control over content Internet.

    24remained in the hands of end users. Concentrating the intelligence in applications operating at the edge of the network was also consistent with the end-to-end argument and the layers

    25principles that many commentators regard as an essential part of the Internet‘s architecture.

     Other commentators took a less sanguine view of edge-based filtering. Some raised the concern that the introduction of filtering technologies would inadvertently prevent end users from obtaining access to benign content and would give the software companies that create and

23 See, e.g., Reno v. ACLU, 521 U.S. 844, 877 (1997); see also Ashcroft v. ACLU, 542 U.S. 656, 667 (2004)

    (offering a more recent reaffirmation of the edge-based vision of filtering) 24 See, e.g., Berman & Weitzner, supra note 3, at 163235; Developments in the Law: The Law of

    Cyberspace: Internet Regulation through Architectural Modification: The Property Rule Structure of Code Solutions, 112 HARV. L. REV. 1634, 1641 (1999); Paul Resnick, PICS, Censorship, & Intellectual Freedom FAQ (Aug. 4, 1999), available at http://www.w3.org/PICS/PICS-FAQ-980126.html. 25

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    26 update the filtering software gatekeeper control over what speech end users could receive.Others observed that widespread deployment of filtering technologies by end users can facilitate

    27government control of content. Still others warned that widescale deployment of edge-based

    28filtering would also have the unintended side effect of skewing innovation.

     Over time, many firewall and filtering functions have begun to migrate from the edge of the network into the network itself. Many last-mile network providers include proprietary antivirus and firewall protection as part of the software needed to access their system. Network providers have also begun building spam and malware filters into the core of their networks.

     The shift of these filtering functions away from the end user into the network itself is driven in part by the change in the nature of Internet users. When it first arose, the Internet served primarily as a means for connecting university-based technologists, who shared a common set of values and enjoyed a fairly high degree of technical sophistication and institutional support. Since that time, the Internet has evolved into a mass-market technology. The shift to a user base dominated by nonexperts without any technical support strengthened the

    29case for transferring more of those functions into the network itself.

26 See, e.g., J.M. Balkin, Media Filters, the V-Chip, and the Foundations of Broadcast Regulation, 45 DUKE

    L.J. 1131, 114547, 115253 (1996); Lawrence Lessig, What Things Regulate Speech: CDA 2.0 vs. Filtering, 38

    JURIMETRICS J. 629 (1998); Thomas B. Nachbar, Paradox and Structure: Relying on Government Regulation to

    Preserve the Internet’s Unregulated Character, 85 MINN. L. REV. 215 (2000); R. Polk Wagner, Filters and the First

    Amendment, 83 MINN. L. REV. 755 (1999); Jonathan Weinberg, Rating the Net, 19 HASTINGS COMM/ENT L.J. 453

    (1997); Elec. Privacy Info. Ctr., Faulty Filters: How Content Filters Block Access to Kid-Friendly Information on the Internet (Dec. 1997), available at http://epic.org/reports/filter_report.html. 27 See Jack Goldsmith, Against Cyberanarchy, 65 U. CHI. L. REV. 1199, 1227 (1998); Tim Wu, Cyberspace

    Sovereignty?The Internet and the International System, 10 HARV. J.L. & TECH. 647, 654 (1997); Jonathan Zittrain,

    Internet Points of Control, 44 B.C. L. REV. 653, 688 (2003). 28 See, e.g., LAWRENCE LESSIG, THE FUTURE OF IDEAS 17274 (2001); JONATHAN ZITTRAIN, THE FUTURE OF

    THE INTERNET (AND HOW TO STOP IT) 3661, 10126 (2008). 29 See Christopher S. Yoo, Would Mandating Broadband Network Neutrality Help or Hurt Competition?: A

    Comment on the End-to-End Debate, 3 J. ON TELECOMM. & HIGH TECH. L. 23, 35 (2004).; see also Marjory S.

    Blumenthal & David D. Clark, Rethinking the Design of the Internet: The End-to-End Arguments vs. the Brave New World, 1 ACM TRANSACTIONS ON INTERNET TECH. 70, 74 (2001), reprinted in COMMUNICATIONS POLICY IN

    TRANSITION: THE INTERNET AND BEYOND 91 (Benjamin M. Compaine & Shane Greenstein eds., 2001).

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