Article by Raymond Shih Ray Ku
The Internet may well be the greatest innovation in speech since the invention of the printing press, but is everyone on the Internet a speaker? If not, how do we differentiate speakers from nonspeakers? These are just two of the questions posed by the first legal issue involving the structure of the Internet itself: whether government (local, state, and federal) can require owners of broadband networks to open their private networks to competing Internet service providers (ISPs). As cable companies begin to fulfill the promise of the information superhighway by providing residences with broadband access to the Internet, ISPs, including America Online (AOL) and Mindspring, have lobbied for what they euphemistically call “open access,” or the opportunity to compete for residential subscribers over the cable system. Supporters claim that open access is necessary to preserve competition in the Internet access market and to promote freedom of speech on the Internet. In response, local municipalities across the nation are taking steps to require cable companies to provide competing ISPs with open access. At the national level, Congress is considering legislation that would preempt state and local law and require open access either as a matter of federal antitrust law or by denying cable companies editorial control over their networks. These efforts to regulate cable ISPs clearly raise First Amendment concerns on both sides of the issue. However, in addressing one such effort by the City of Portland to force AT&T, TCI Cablevision, and their ISP, TCI@Home, to provide access to competing ISPs, a federal district court dismissed the cable operators' First Amendment claims. The court simply concluded that there was no free speech violation because there was no evidence that “cable subscribers accessing the Internet through AT&T's cable modem platform would associate AT&T with the speech of unaffiliated ISPs.” On appeal, the Ninth Circuit avoided the First Amendment issues by concluding that open access is preempted by Congress.
This summary conclusion hardly does justice to the complexity of the First Amendment issues presented by open access. The district court's decision does not even begin to address, let alone answer, questions such as: Are cable ISPs speakers for the purposes of the First Amendment? If so, how is open access consistent with our First Amendment tradition against compelled speech? If cable operators do not have free speech rights under these circumstances, why not? Correspondingly, since access claims are usually based upon the free speech interests of those seeking access, is open access justified as an effort to protect the free speech of competing ISPs? Aside from failing to address these questions, the decision ignores an important reminder—when regulating emerging technologies like the Internet, we must take care “because even commonly understood terms [and legal concepts] may have different connotations or parameters in this new context.”
As we enter the twenty-first century, the Internet is fast becoming an important part of our commercial, political, and social lives. As one jurist observes, the Internet is the “most participatory form of mass speech yet developed.” It is also big business. Not surprisingly, given the Internet's explosive growth and financial rewards, the struggle over who will control the information superhighway is well underway. Nowhere is this more clear than in the competition to provide the public with access to the Internet. While the Microsoft antitrust suit demonstrates that the question of who will provide the software that allows us to surf the Net is a high stakes contest, the question of which companies will hard wire us to the Internet itself is just as controversial.
Who will provide us with access to the Internet, and how, becomes especially compelling when one recognizes that many individuals have yet to participate in the Internet revolution. While commentators have noted the Internet's potential to radically transform the way we behave as individuals, citizens, and consumers, a rift has developed between the Internet haves and have nots. This digital divide separates real space from cyberspace based upon race, income, education, and geography. The digital divide can be largely attributed to one simple fact—accessing the Internet requires money. It requires hardware and software capable of interacting with the Internet, such as a personal computer, Microsoft's Internet Explorer, or WebTV; it requires paying for a pipeline or connection to an ISP, such as a telephone line, cable, or satellite hookup; it also requires subscribing to an ISP whose computer network provides the gateway to the information superhighway. While companies may provide parts of this package for free or at reduced prices, someone always has to be paid in order to utilize the Internet. With respect to broadband Internet access, this means that while the wealthy and educated in this nation are able to access a universe of information with the click of a mouse, communicate with political candidates by e-mail, trade stocks on-line, watch the state of the union address live on their computer, and eventually vote for political candidates over the Internet, the less affluent and less educated will be shut out. Because of the digital divide and economic barriers to Internet access, federal and local governments have been particularly concerned about monopolization and market dysfunction with respect to Internet related services. In fact, Portland justified its actions as necessary to ensure that the market for providing Internet service would remain competitive in light of the new cable technologies. The underlying policy assumption at both the federal and local levels has been that competitive markets will create the conditions necessary for the greatest degree of access to the Internet. However laudatory these purposes may be, efforts to regulate the Internet to ensure competition cannot ignore the limits upon government embodied in the First Amendment.
While we have readily incorporated the Internet into our daily lives, incorporating it into our laws has been significantly more difficult. This Article examines the degree to which open Internet access raises free speech concerns for the cable ISPs, who own the networks and are subject to open access requirements, as well as the competing ISPs seeking access. As we will see, determining whether open access is consistent with our First Amendment traditions depends upon whether and to what degree ISPs are speakers entitled to First Amendment protection. Part II of this Article briefly describes the Internet's architecture to explain how we access the information superhighway, and the various technologies that transport us. Part II demonstrates that open access is not about access to the Internet as a whole, but is instead, a claim for access to what is commonly referred to as the “last mile”—the physical pathways connecting the home from the curb. Part III examines the regulatory context in which the Internet and ISPs operate, and concludes that imposing open access requirements upon cable ISPs is inconsistent with the existing regulatory regime. Assuming that all ISPs are speakers and that open access, therefore, represents a policy of accommodating competing First Amendment claims, Part IV examines whether open access is consistent with the United States Supreme Court's decisions in Turner Broadcasting System, Inc. v. FCC in which the Court upheld mandated access to cable television. Part IV argues that critical differences between the Internet and cable television lead to the conclusion that open Internet access violates the First Amendment. Part V questions the assumption that ISPs should always be treated as speakers, and outlines three approaches for evaluating the speech rights of ISPs under the First Amendment. Part V demonstrates that open access is caught in a First Amendment catch-22. If we adopt a First Amendment approach that does not recognize cable ISPs as speakers with respect to open access, we must conclude that competing ISPs are not speakers either. Consequently, either ISPs are considered speakers and open access is inconsistent with the First Amendment, or ISPs are not speakers and open access cannot be justified by the First Amendment.
About the Author
Raymond Shih Ray Ku. Associate Professor of Law, Seton Hall University School of Law; Director, Institute of Law, Science & Technology; A.B. Brown University; J.D. New York University School of Law; Fellow, Arthur Garfield Hays Civil Liberties Program (1994-95).
Citation
75 Tul. L. Rev. 87 (2000)