I introduced the division between the Negative/Affirmative way of interpreting the First Amendment in the last post. Nunziato breaks down 5 doctrines that have upheld the "Affirmative" conception of the First Amendment until the mid twentieth century, after which they were gradually, significantly weakened; the unwillingness of the court to apply these historical doctrines to new technologies and the increasingly narrow, negative interpretation of the doctrines has resulted in today's situation where there is little or no public space on the Net while privately controlled speech conduits go almost entirely unregulated.
Because she writes with the thoroughness (read: redundancy) of a lawyer, I am going to further break those doctrines down, and describe them at their strongest, most "affirmative" embodiment in court rulings. Later I will address how they have since been weakened.
1) Public Forum Doctrine
Historically put in place to ensure that even if all private property owners discriminate against speech, there will still be some publicly owned places for discussion/debate.
In a pivotal case where the court upheld this doctrine, "it emphasized that government must facilitate expression within 'natural and proper places for expression,' even if doing so will impose costs and inconvenience"1
(natural & proper = traditional places such as streets, sidewalks, and parks, which have "immemorially been held in trust for the use of the public"; designated public property which has not been 'immemorially" used but has been designated by the government for expression in general or on certain designated subjects; nonpublic forums that are government owned like military bases, jails, or federal workplaces. Natural & proper need not mean physical space, as this doctrine has historically been upheld for TV and radio broadcasting.)
2) State Action Doctrine
"When private actors perform functions that have traditionally or exclusively been performed by the state, they are charged under the state-action doctrine with obligations…to facilitate expression."2
Courts impose these obligations on "actors" other than government when:
--> actor is a government corporation
--> actor performs functions traditionally/exclusively performed by the gov't
--> where the state has become involved/authorized private, unconstitutional conduct (i.e. the state cannot get a private actor to do something unconstitutional for it).
This doctrine was tested in a case where a so-called "Company Town," (an entire town—houses, stores, town halls, et. al—built by a single corporation around a single industry) restricted the speech of a resident when she tried to hand out pamphlets on the town green, citing their rights as private land owners. It was upheld, and the following is a snippet from the court's ruling:
"Ownership does not always mean absolute domination. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory & constitutional rights of those who use it."3
3) Fairness Doctrine
This doctrine established broadcasters as "fiduciaries for public interest… and granted a (conditional) right of access to (certain) members of the public on certain matters of public importance."4 Basically it tried to provide that radio and TV covered controversial issues in a balanced and fair way.
This doctrine was contended by radio broadcasters in 1964. The station was sued by a politician when it aired "personal attacks" on him, but refused to give him air time to respond to those attacks. The broadcasters cited their First Amendment right to free speech and free press. The court responded:
"Because a limited number of broadcast frequencies exist… the state is justified in treating the chosen licensees as proxies or fiduciaries for members of the public at large… the broadcast licensee has no constitutional right to monopolize a radio frequency to the exclusion of his fellow citizens."5
4) Must Carry Obligations
Requires cable systems operators to carry local commercial and non-commercial educational public broadcast stations.
"A daily newspaper, no matter how secure its local monopoly, does not possess the power to obstruct readers' access to other competing publications…The same is not true of cable… the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber's home… The potential for abuse of this private power over a central avenue of communication cannot be overlooked… The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not resrict, through physical control of a critical pathway of communication, the free flow of information and ideas."6
5) Common Carriage Doctrine
I've been through this one pretty thoroughly before, but I'll recap. The common carriage doctrine imposes affirmative obligations on privately owned communications conduits to facilitate such communications without discrimination."7 As I have mentioned, this obligation in return ensures the carrier that they are not liable for the contents of what they carry: "conduits carry all legal content without discrimination."8
The F.C.C. states that "the role of a common carrier such as the telephone company is neither to generate content nor to make editorial or qualitative decisions regarding which content to carry and which to censor… Common carriers are distinct in from publishers or other editors who enjoy their own First Amendment rights to exercise editorial discretion in their selection and exclusion of content."9 (I state: AHEM hem, GOOGLE, HEM.. editorial discretion… mutter mutter…)
1 Nunziato, Dawn Virtual Freedom; Net Neutrality and Free Speech in the Internet Stanford: Stanford University Press, 2009. 46.
2 48
3 51
4 55
5 57
6 62
7 65
8 67
9 68
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