BRIGHT IDEAS: Nunziato on Virtual Freedom: Net Neutrality and Free Speech in the Internet Age

My colleague at George Washington University Law School, Professor Dawn Nunziato, has recently published a provocative book about the First Amendment and the Internet — Virtual Freedom: Net Neutrality and Free Speech in the Internet Age (Stanford University Press 2009).

Her book explains that, contrary to the prevailing understanding of the Internet as a haven for free speech, our communications on the Internet today are subject to censorship and control by a host of private gatekeepers – most notably, by broadband providers.  Under the prevailing negative conception of the First Amendment, these powerful private gatekeepers are not subject to the First Amendment’s mandate prohibiting censorship.  Unlike real space conduits for communication – like telecommunications providers and the postal service – broadband providers are unregulated in their power to censor speech on the Internet.  Dawn argues for an affirmative conception of the First Amendment, under which public and powerful private gatekeepers of Internet communications are subject to the First Amendment’s mandate to ensure the free flow of communications in the digital age.

I had a chance to ask Dawn a few questions about her new book.

SOLOVE: You point out many compelling examples of how ISPs, search engines, and news aggregators are censoring speech.  Can you briefly describe one or two of the most troublesome of your many examples of speech censorship?

NUNZIATO: The examples of censorship that are most troublesome to me involve content or viewpoint discrimination by broadband providers and wireless carriers.  In my view, broadband providers and wireless carriers should be required to serve as neutral conduits for our expression and should not be permitted to censor or block communications.  In one troubling incident, Verizon Wireless initially refused to allow NARAL Pro-Choice America to send text messages to Verizon customers who had signed up to receive such messages.  Verizon relied on its authority to block messages that “may be seen as controversial or unsavory to any of our users.”  In another incident, Comcast refused to deliver politically-charged, time-sensitive emails from an organization that was critical of President Bush’s handling of the War with Iraq.  Examples like these led me to argue that broadband providers and wireless carriers should be prohibited from discriminating against speech on the basis of viewpoint or content.  Just as telecommunications providers and the postal service have long been regulated as “common carriers” and prohibited from engaging in content discrimination, so too should broadband providers be prohibited from discriminating against content in serving as communications conduits.

SOLOVE: You propose what you call “an affirmative conception of the First Amendment.”  What do you mean by that?

NUNZIATO: Let’s contrast two conceptions of the First Amendment.  Under the negative conception, individuals do not enjoy any affirmative right to speak; rather, they only enjoy the right to prevent the government (and only the government) from censoring their speech.  Censorship by other powerful conduits for expression – like broadband or wireless providers – is permissible under this negative conception – even if it means that individuals actually have no meaningful avenues for expressing themselves.  In contrast, under the affirmative conception of the First Amendment, individuals enjoy an affirmative right to speak, free from content and viewpoint discrimination — regardless of whether such discrimination occurs at the hands of the government or other powerful regulators of speech.  The Supreme Court has recognized such an affirmative conception of the First Amendment in several areas, including in the public forum and company town contexts and must carry regulations governing cable TV providers.  But so far, the affirmative conception has not taken root in the Internet context.  This is problematic because virtually all of our speech on the Internet is subject to control by powerful private entities – by broadband providers, email providers, search engines, etc. – and if these gatekeepers of Internet speech are not subject to the First Amendment’s mandate prohibiting censorship, then there is no guarantee that our communication will be free.

SOLOVE: There are some who argue for “net neutrality” – that all ISPs be prohibited from censoring or discriminating against content or applications in any way.   How is what you’re arguing different?

NUNZIATO: My argument is grounded in the First Amendment and focuses primarily on content discrimination by the broadband providers.  Because broadband providers, among their other roles, essentially serve as conduits for our communications, I argue that they should be prohibited from discriminating on the basis of content or viewpoint in facilitating these communications.  Just as telecommunications providers and the postal service, as common carriers, have long been charged with the duty to facilitate our communications free of censorship, so too should broadband providers be subject to such non-discrimination obligations and be required to facilitate the free flow of information.  Implementing First Amendment freedoms on the Internet requires that we extend this non-discrimination principle to Internet communications.  But net neutrality can also incorporate different mandates – including that broadband providers should not be permitted to accord different type of applications (say email and video on demand) different priorities, or that broadband providers should not be allowed to offer tiered layers of service (faster versus slower connection speeds) at different rates.  My argument is not centered on these other potential meanings of net neutrality, but focuses instead on the requirement that broadband providers serve as neutral conduits in facilitating Internet speech.

SOLOVE: Practically, how would your proposals regulate companies such as Comcast and Google?

NUNZIATO: The thrust of my argument is that broadband providers like Comcast and Verizon should be prohibited from discriminating against our communications on the basis of content or viewpoint. Comcast, in its broadband provider capacity, should be prohibited from prioritizing its own content or other favored content, and from degrading or blocking disfavored or unaffiliated content.  Under my proposal, for example, Comcast would not be permitted to provide favorable treatment or transmission speeds to its own video-on-demand content, while degrading YouTube content.  Comcast would also be prohibited from discriminating against or blocking First Amendment protected expression on the basis of its content.

Google would be subject to different scrutiny under my proposal.  While broadband providers would be required to serve as neutral conduits for our communications, search engines serve a different role – that of organizing and presenting the Internet’s content to us in the most useful manner possible.   Search engines like Google make representations to their millions of users that their search results are solely the product of the neutral and objective application of their sophisticated computer algorithms.  Yet, in several instances when it served Google’s interests, Google manipulated its search results on an individualized basis.  I argue that Google (and other dominant search engines) should not be permitted to have it both ways – to represent that their search results are produced objectively while subjectively manipulating such results on an individualized basis when it serves their interests.

SOLOVE: You argue that “Congress should enact legislation authorizing the regulation of such dominant search engines [like Google] to require that they provide meaningful, uncensored access to Internet content (as they in fact promise to do) and to prohibit them from deliberately manipulating search results on an individualized basis.”. . . What if Google decides to change its search algorithm, changing the order of search results?  Would this trigger a problem with the legislation you’re proposing?  Why should the government tell it what it can or can’t do?

NUNZIATO: As a general matter, I think search engines like Google provide an immensely valuable service and are working very well without government intervention.  And they should remain free to modify their algorithms free from government oversight so as to provide the most relevant search results to their users.  What they should not be allowed to do is to block or demote disfavored sites on an individualized, hand-picked basis because of hostility for that site’s content or viewpoint.  For example, in one recent incident that arose in the context of a lawsuit brought against it, Google allegedly manipulated its search results on an individualized basis to make it harder for a party suing Google to prove its case.  Because of the immensely important speech-facilitating functions that Google and other dominant search engines serve and because of the representations they make to those of us who rely on their search engines billions of times each month, such search engines should be monitored to ensure that they serve up content free of invidious discrimination, as they have promised to do.

SOLOVE: Thanks Dawn.  The book is Virtual Freedom: Net Neutrality and Free Speech in the Internet Age (Stanford University Press 2009).

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