Speech Rights in America: The First Amendment, Democracy, and the Media

5. Democratic Speech Rights on the Internet

ij 5 Democratic Speech Rights on the Internet fundamentally, democratic communication requires the ability to send communication, to receive it, and to create public spaces for social mediation.These conditions are the foundation of democratic speech rights, or speech rights that serve democracies.Nevertheless,as we have discussed in the preceding chapters, First Amendment interpretations offer only limited protection to these vital components of democratic communication in the traditional mass media. In Miami Herald, the Supreme Court rebuffed the efforts of states to create a right of access to print media. At the same time, the Court only partially upheld the public’s speech rights in broadcasting. While championing the public’s right to receive broadcast information in Red Lion, the Court in CBS v. DNC denied the public the actual opportunity to speak in this medium. Nor has the Court been willing to grant constitutional protection to public space on cable television. Although cable-access channels have operated for decades as if empowering speech rights guide their use, Denver Area showed that speech in these forums has no real First Amendment aegis. Will the Internet provide a forum for democratic communication when more established media have not? The Internet is a network of networks, owned and operated by a mixture of public and private entities that voluntarily share open-network protocols. It provides a relatively affordable, open, and equitable communications environment. Presently, people can access the Internet at little or no cost through a variety of organizations, ranging from commercial ISPs and private computer systems to libraries, nonprofit groups, and educational institutions.1 With Internet access, the 82 speech rights in america possibilities for democratic communication are many. People can send and receive communication without interference from centralized mediators and gatekeepers. Electronic mail (e-mail), bulletin boards, list services, web logs, real-time communication, and unmoderated newsgroups facilitate dialog and discussion around a broad array of topics. For much of its history, most Internet communication has traveled over universally accessible telephone lines that have been mandated by law to connect with ISPs on nondiscriminatory and reasonable terms (Cooper 1026). As a result, Internet users have had their choice among numerous ISPs who have competed on price, terms, and conditions of service.2 Consumer choice among ISPs has made attempts to control content by individual ISPs less likely and less effective, since consumers could respond by switching to a new ISP (Newhagen and Rafaeli 13). To date, few ISPs have constrained or rationed network bandwidth, or the capacity available to their users, and few have differentiated or prioritized among users. Such egalitarian behavior, along with the common practice of processing network transactions on a first-come, first-served basis, has contributed to equality of service on the network (Shenker 318). These characteristics —affordability,openness,and equality—have made the Internet a potential forum for democratic communication. Many commentators acknowledge the nexus between the Internet and democratic communication (Aurigi 60; Behlendorf 151; Cooper 1011; Downing 157; and Sassen 177). In popular discourse, moreover, the Internet seems poised to overcome the problems of older media that failed to serve democratic communication. Many characterize the Internet as an open medium and public space where Internet users enjoy seemingly limitless opportunities to create, collect, and circulate information. Whether we view the Internet as an ideal forum for democratic communication, the Internet does offer real opportunities for social mediation that transcend distance. Conditions online are such that the possibility of experimenting with different methods and modes of social mediation abound. If we want the Internet to serve the communicative needs of a democratic society, we need to maintain these conditions. Unfortunately, the current conditions surrounding the Internet are not unchangeable. The Internet faces pressures to change, and as Lessig points out, there is no reason why tomorrow’s Internet must resemble the Internet of today (Future of Ideas 167). Alterations to hardware and software can transform network design. In the United States, both government and private interests are exerting pressure to change the Internet. Throughout the 1990s U.S. regulators contemplated a range of laws and legislation designed Speech Rights on the Internet 83 to alter the network’s physical and intellectual infrastructure and control its information flows (Benkler,“Net Regulation” 1204).A number of these laws, namely the Communications Decency Act (CDA), the Child Online Protection Act (COPA), and the Children’s Internet Protection Act (CIPA), cast about for acceptable ways to...