Two new perspectives on speech and regulation

By coincidence, these two abstracts landed on SSRN (crack for researchers) about the same time:

1. “Media Ownership Regulation, the First Amendment, and Democracy’s Future” (Adam Candeub)

Hammering the FCC for its model of driving “the antitrust law for the marketplace of ideas” (Candeub’s own expression – reproduced here because it is a useful phrase and is original, but please note the author’s desire that this version of the paper not be cited) and even touching on the role of YouTube etc…

leading nicely to (the very different)

2. This provocative paper from former FCC staffer and thinktank director Randolph May, “Net Neutrality Mandates: Neutering the First Amendment in the Digital Age” (from 3(1) I/S: A Journal of Law and Policy for the Information Society (2007):

There is a raging debate over whether Congress should enact new laws mandating so-called net neutrality for broadband Internet service providers (“ISPs”). While there are several policy reasons why net neutrality mandates should not be adopted, an often overlooked and unappreciated legal reason is that net neutrality mandates may violate the First Amendment free speech rights of the ISPs. Net neutrality mandates generally are framed to prohibit ISPs from taking any action to “block, impair or degrade” subscribers from accessing any website, or from “discriminating” against an unaffiliated entity’s content by refusing to post or send such content on or over the ISPs’ infrastructure. ISPs are speakers for First Amendment purposes, and under traditional First Amendment jurisprudence, it is as much an infringement of free speech to force a speaker to convey messages as it is to prohibit conveyance. This article discusses some of the leading First Amendment cases that address regulation of the media, including those involving speech restrictions placed on broadcasters, cable companies, and newspapers. It concludes that, in today’s competitive digital broadband communications marketplace, net neutrality mandates that dictate ISPs’ choices concerning the dissemination of content are not likely to survive a challenge under the First Amendment.

Of course, given that his organisation and director is described as follows:

The Free State Foundation is a non-profit Maryland-based think tank. Its purpose is to promote understanding of free market, limited government, and rule of law principles in Maryland and throughout the United States. FSF will focus on eliminating unnecessary and counterproductive regulatory mandates, reducing overly burdensome taxes, protecting individual and economic liberty, reforming civil liability laws, and making government more effective, efficient, and accountable. May brings to FSF an extensive background in communications policy, but that will only be a part the Foundation’s work.

it is hardly surprising – recalling the discussion in the post below on lobbyist-lawyers – that the above conclusion was reached on the First Amendment analysis. Indeed, if the director of an organisation dedicated to dramatic deregulation of what’s left of tech regulation by the FCC were to argue that there are no First Amendment reasons to refrain from net neutrality regulation, that would be a man-bites-dog story worth blogging. However, with that caveat, an interesting approach.

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One thought on “Two new perspectives on speech and regulation

  1. Interesting post, as always. And the whole series makes me jealous of your being there. But I’d like to make just a quick comment on Candeub’s wonderful coinage of “the antitrust law for the marketplace of ideas”. First, in similar vein to Candeub’s piece is ME Stucke and AP Grunes “Antitrust and the Marketplace of Ideas” (2001) 69 Antitrust Law Journal 249 (available here on SSRN), though Candeb’s is more elegantly theorised. Second, the major discussion of the “marketplace of ideas” as a concept is the powerfurl S Ingber “The Marketplace of Ideas: A Legitimizing Myth” (1984) 33 Duke Law Journal 1 (available here on Hein and here on JSTOR (subs req’d)) in which the language of antitrust economics (market failure, etc) is very much applied.

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