This paper asks how best to protect free speech on the Internet.
The Internet is a very complex network and it would not be possible to present information online in a way that is completely uncontrolled by anyone. Information management by private firms is similar to the way editors control the content of newspapers, and makes sense. Allowing government to regulate the Internet presents a greater danger to free speech than private control.
- Controversy has arisen about dominant private firms’ decisions to manage information on the Internet, such as Apple’s decision not to support some applications developed by Google, or broadband carriers’ management of content moving over their networks.
- Such claims are inconsistent; all of these different firms cannot be dominant at the same time.
- Courts interpret the first amendment as a limit on government action, not on private firms.
- Like speech over a cable television network, speech sent out over the Internet passes through many managers and intermediaries before reaching its audience.
- Intermediaries’ management of information often helps consumers.
- Intermediaries help control problems like viruses.
- Intermediaries must help consumers find quality content.
- Intermediaries help resolve bargaining problems likely to arise between consumers and other online entities in working out pricing.
- Supreme Court cases emphasize the value of the editorial discretion exercised by intermediaries like newspaper editors, broadcasters, and cable television operators in free speech.
- New competition in offering Internet access from wireless and mobile services makes it hard justify regulation of intermediaries on the grounds that the market for access to Internet and broadband service is not competitive.
- Courts have recognized that common carriers like telephone companies also have the right to offer non-common carriage services over which they exercise editorial discretion.
- Efforts by the FCC to regulate the exercise of editorial discretion by intermediaries resulted in problems, such as discouraging controversial speech and enabling politicians to silence critics.
- Giving the government the power to regulate the Internet would be a greater threat to free speech than private firms.