Über die Autorin bzw. den Autor

Dawn C. Nunziato is Professor of Law at The George Washington University Law School.

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VIRTUAL FREEDOM

Stanford University Press

Contents

Acknowledgments...................................................xiIntroduction......................................................xiii1 Speech and Censorship on the Internet...........................12 The First Amendment's Free speech Guarantee.....................243 Embracing the Affirmative First Amendment.......................414 A Place to Speak Your Mind......................................705 When Private Becomes Public.....................................886 Speech Conduits and Carriers....................................1157 Protecting Free Speech in the Internet Age......................134Conclusion........................................................152Notes.............................................................159Index.............................................................191

Chapter One

According to the conventional wisdom, the internet is a forum for free expression of unprecedented scope and importance. And much about the conventional wisdom is accurate. Since the limitations on the permissible uses of the Internet were lifted and the Internet was opened up as a forum for expression of all kinds, members of the public from every corner of the world have flocked to it to express themselves and to access the expression of others. The Internet enables individuals to use all manner and forms of expression-text, images, voice, audio, and video-to communicate with one another on a global scale. As one federal district court explained in reviewing an early Internet First Amendment challenge, "It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country-and indeed the world-has yet seen."

The conventional wisdom accurately maintains that the Internet serves as an important forum for expression in large part because of the unprecedented ease of entry into this forum for expression. Yet such expression is ultimately controlled by-and may be facilitated or frustrated by-a small handful of powerful conduits, that is, the broadband providers, Internet backbone providers, email providers, and search engines that make it all happen. Within the United States market for Internet expression, a small number of broadband providers have the power ultimately to control which expression is facilitated and which is not. In recent years, the regulation of the Internet has evolved so as to grant these private entities unfettered control over individuals' expression, to the point at which the potential for private conduits to censor speech in this medium is unprecedented. Although initially conceived-by both courts and commentators-as a speech utopia, the Internet is now in danger of becoming a dystopia for expression because of this concentration of power and private regulation and control. We would do well to heed the Supreme Court's admonition from a decade ago involving regulation of other private conduits of speech:

The potential for abuse of private power over a central avenue of communication cannot be overlooked.... Each medium of expression must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems. The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas.

Assessing the features of the Internet as a communications medium demonstrates that-as within the cable television medium to which the Court refers above-private Internet speech conduits such as broadband providers indeed exercise substantial "control of critical pathways of communication" and enjoy the power to threaten "the free flow of information and ideas"-power that should be held in check under a proper understanding of the First Amendment.

Censorship by private broadband providers is growing. Most Internet users are unaware of the restrictions on speech imposed by their Internet service providers, and may be surprised to learn that such censorship does not violate the First Amendment or communications laws (as currently interpreted by the courts). The majority of courts, which have adopted a negative conception of the First Amendment, have been unwilling to find First Amendment violations in restrictions of speech implemented by broadband providers or other private regulators of Internet expression. Similarly, policymakers within the Federal Communications Commission (FCC) have shifted toward a negative conception of the First Amendment, in which communications conduits such as broadband providers are unregulated in their obligation to facilitate the speech flowing through their pipes. Furthermore, Congress in 1996 explicitly encouraged Internet service providers (ISPs) to restrict access to content that the providers consider objectionable and expressly insulated the providers from liability for doing so-even though such restrictions of speech would constitute First Amendment violations if they were undertaken by public conduits of speech. The result is that the small handful of private entities that exercise control over the pipelines for Internet expression now essentially enjoy free rein to censor such expression-and are increasingly doing just that.

It wasn't always so. In the early years of the Internet, conduits for Internet speech were governed by regulations that prohibited them from discriminating against content or applications (and were not insulated from liability for restricting such expression). A decade ago, the FCC regulated the telephone companies that provided dial-up Internet access as "common carriers" and prohibited them from discriminating against-in the form of blocking, censoring, or degrading-Internet content or applications. Just as the telephone companies, from the early days of communications regulation, have been subject to common carriage obligations under the Communications Act of 1934 requiring them to facilitate the transmission of all (legal) conversations, so too were they required under the common carriage doctrine to facilitate the transmission of all (legal) Internet content. Indeed, the Internet developed and flourished as "the most participatory form of mass speech yet developed" under this regime in which nondiscrimination obligations were imposed on Internet speech conduits. Under this nondiscrimination regime, Internet users could post, transmit, and access any and all (legal) content of their choosing. As FCC commissioner Michael Copps described the state of affairs prior to the widespread deployment of broadband Internet access:

In the dial-up world, [each Internet user] has jurisdiction over the applications that prevail, and what power that is! No network owner telling you where to go and what to do. You run the show. This freedom-this openness-has always been at the heart of what the Internet community and its original innovators have celebrated. Anyone can access the Internet ... and read or say what they want. No one can corner control of the Internet for their purposes.

All that began to change in 2002, when the FCC concluded that one class of...