+ vs -

There is a difference between these two things:

1)  facilitating free speech in a democracy

2)  a democratic government that does not censor speech

            Nunziato quotes her fellow GWU Law School professor Jerome Barron: "'The marketplace of ideas' has rested on the assumption that protecting the right of expression [from government censorship] is equivalent to providing for it."¹

Dawn Nunziato's Virtual Freedom; Net Neutrality and Free Speech in the Internet Age (2009) frames the issue by saying there is basically two ways to look at our First Amendment. One way, the government simply has no control over communications conduits (e.g. Comcast as an ISP, or Google's search engine, email, and news) who enjoy the ability to "dominate or monopolize the relevant forum for discussion"², because this ability is the legitimate outcome of competition in the marketplace.

In other words,
           By rule of the market they grew to be as big as they are because they had the best ideas, and if they choose to censor the communication of important ideas or competitive advances that grate against their own business interests, political interests, or PR, then so be it. If you don't like that, find another conduit. Yes, your options are limited, certainly for reaching the same volume of people, but, well, they won the market. There is logic in this argument—perhaps only in theory.

The communication channel that is the Internet is ubiquitous in the urban and first world setting; because most of it's crucial functions are provided by a small number of gigantic companies it's easy for the average Internet user to forget that these are "private speech regulators," which do not act on behalf of the state and therefore are not subject to regulation under the bill of rights. This is what is known as the "State Action Doctrine": "under the doctrine as interpreted in the First Amendment context, on the public side, the state—and those entities that are functionally equivalent to the state—are prohibited from restricting expression."³

As I said, Nunziato dichotomizes interpretations of the First Amendment in regards to this issue. One side is the Affirmative Conception, and the other, the Negative Conception.

"Those who espouse a negative conception of the First Amendment generally adopt a restrictive interpretation of the state action doctrine and draw the public-private line so as to regulate only the speech regulations of the government itself, leaving all private speech regulators—regardless of their power or distort public deliberations and debate—immune from scrutiny."⁴

On the other side

"The affirmative conception of the First Amendment recognizes that individuals have a right to participate in democratic self-government by expressing their views, and in turn by being exposed to a diversity of viewpoints on matters of societal and public importance. The state is justified in regulating powerful private conduits and private owners of forums for speech where necessary to facilitate such speech."⁵

As I noted when I laid out some terms in the last post, it is important to realize that not all types of data "discrimination" are equal as far as your rights are concerned, so it's important to disentangle those that do matter. ISPs might well have reason to alter the way they facilitate data-streams, and if they do so without reference to the content, it is not a First Amendment issue.  This is a point that will surely be, and has surely been, misrepresented by multiple players—and bloggers—with stakes in the issue.  Dawn Nunziato addressed this directly in an interview:⁶

My argument is grounded in the First Amendment and focuses primarily on content discrimination by the broadband providers… 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. 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.

            This consideration of the First Amendment is not mere speculation on what could go wrong, because such "communications conduits" are, indeed, censoring traffic. To what degree, or in what specific ways? These are difficult questions to answer precisely, seeing as there is no current legal obligation to transparency. However, evidence has been gathered and fought over in court in regards to ISPs degrading service, blocking text messages and emails; search engines "banishing" sites from results, refusing to host sponsored links, removing media organizations from "objective" news aggregators… because of content that is touchy in terms of the host's business or political interests. I will go into cases and details in posts to follow.

¹ Nunziato, Dawn Virtual Freedom; Net Neutrality and Free Speech in the Internet Stanford: Stanford University Press, 2009. 28.

² 33

³ 35

⁴ 36

⁵ 32

⁶  Solove, Daniel. "Bright Ideas: Nunziato on Virtual Freedom: Net Neutrality and Free Speech in the Internet Age" May 3 2010.

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