In recent years, concerns about the role of Internet intermediaries have continued to grow. The debate initially focused on last-mile broadband providers’ abilities to favor certain content or applications either by giving them different levels of higher priority or by charging them different amounts. The issue came to a head in 2008 when the FCC sanctioned Comcast for slowing down the traffic associated with a single application, only to see that decision overturned on judicial review. Commentators have also warned of search engines’ abilities to influence the speech environment by skewing search results. Other commentators have called for mandating open access to key file-sharing and social networking technologies, such as YouTube, BitTorrent, Facebook, and MySpace. Most recently, controversy has arisen over access to key device technologies, as demonstrated by the decision of the Federal Communications Commission (“FCC”) to open an investigation into Apple’s decision not to carry certain voice applications developed by Google. Still other commentators have focused not on these intermediaries’ abilities to shape Internet speech in accordance with their own views, but rather on the government’s ability to impose regulation of intermediaries as an indirect means for imposing its own speech preferences. Newspaper accounts constantly raise concerns about the manner in which intermediaries such as Comcast, Google, Facebook, and Apple select and prioritize content and applications.
Note that these claims reflect a deep internal inconsistency. Sometimes the network provider is the actor charged with wielding its market power in a manner that harms the hapless device and application providers. In other cases, it is the device manufacturer that is accused of abusing its dominance, while in still other cases it is the application provider (particularly search engines and social networking software). Simply put, these claims cannot be advanced simultaneously in a coherent manner. If, in fact, more than one level of this chain of distribution is dominated by a single player, the economics of “double marginalization” suggest that consumers would be better off if both were controlled by a single entity.
In short, the image of the Internet as an unintermediated experience, in which speakers speak directly to audiences without passing through any gatekeepers, is more myth than reality. The real question is not whether some actor, but rather which actor, will serve as the intermediary. The Supreme Court’s First Amendment jurisprudence underscores that important free speech considerations fall on both sides of the debate over intermediation. Moreover, in terms of deciding how that balance should be struck, the cases indicate that free speech considerations favor preserving intermediaries’ editorial discretion unless the relevant technologies fall within a narrow range of exceptions, all of which the Court has found to be inapplicable to the Internet. Indeed, Supreme Court precedent recognizes the importance of this editorial discretion even when intermediaries are simply serving as the conduit for the speech of others. Moreover, the Court has long held that the fact that an intermediary may wield monopoly power and the danger that intermediaries may act as private censors do not justify regulating their editorial discretion. That would substitute government decisionmaking for private decisionmaking, and although Supreme Court precedent and our free speech traditions are agnostic as to which private actor should serve as the intermediary, they are very clear that it should not be government, and when choosing between censorship by a private actor and the government, the choice should always favor the former over the latter.
The balance of this Article proceeds as follows: Part I discusses the inevitability of intermediation, both in terms of protecting end users from exposure to unwanted content and in helping them identify and obtain access to desirable content. It also analyzes the manner in which intermediaries may be essential to solving certain bargaining problems that may prevent end users from obtaining access to the content they desire. Part II analyzes the judicial precedents recognizing the important free speech values promoted by intermediaries’ exercise of editorial discretion, including the Supreme Court’s decisions regarding newspapers, broadcasting, and cable television. It also examines lower court decisions on dial-a-porn and on telephone companies’ First Amendment right to offer video programming to explore how editorial discretion can promote free speech values even when exercised by common carriers such as telephone companies. Part III reviews the inauspicious history of past attempts to regulate the editorial discretion wielded by electronic intermediaries. Together, these insights underscore how Internet intermediaries’ exercises of editorial discretion can foster rather than impede free speech values.
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