Brewing Free Speech scholarship
Free Speech scholarship, unsurprisingly, tends to focus of government censorship. An interesting new area of scholarship centers on the relationship between free speech and private or public rules and norms regulating discrimination in carriage.
Consider that, by law, your mobile phone can reach any other in the United States. Most of us don’t think of that as a speech rule, but it is of a kind. Similarly, Net Neutrality, which disallow the blocking of web sites, affect speech by effectively banning private censorship. When you think about it, on a day-to-day basis, these kind of rules may actually affect the speech environment of the United States more than the First Amendment. That could be otherwise, and the Government has the capability to be a major controller of speech, but often it is just a bit player.
I’ve noticed a group of new and interesting papers on this topic. Stuart Benjamin has one, entitled “Transmitting, Editing, and Communicating: Determining What ‘the Freedom of Speech’ Encompasses” coming out in Duke L. J. (You can probably email him for it). He is interested in what happens if you subject common carriage or net neutrality rules to full first amendment scrutiny. His basic theory is that transmissions shouldn’t be considered speech for purposes of the First Amendment. He is in a dialogue with, among others, Rob Frieden, and Moran Yemini, who have both written on this topic.
There is important work also from Marvin Ammori, a young professor who spent time in DC litigating Net Neutrality, and wrote an interesting early paper on this. He now has a broader and fascinating new draft “First Amendment Architecture.” He begins “The right to free speech is meaningless without some place to exercise it.” Ammori argues that a critical part of free expression are governmental doctrines that make room for speech. The piece brings together older rules, like public forum rules, and newer, like the various access and non-discrimination rules in telecom, and says they are central to American free speech doctrine.
There are probably other works in this line that I’ve missed, but its an interesting new line of scholarship.