Beyond content neutrality: understanding content-based promotion of democratic speech.

• Author: Ammori, Marvin

1. INTRODUCTION: CONTENT-BASED LAWS THAT PROMOTE FAVORED CONTENT II. CONVENTIONAL WISDOM ON CONTENT III. DESCRIPTIVE ARGUMENT: CONTENT PROMOTION DOES NOT RECEIVE HEIGHTENED SCRUTINY, AND MUST MERELY BE VIEWPOINT-NEUTRAL A. Doctrinal Areas Endorsing Viewpoint-Neutral Content Promotion 1. Limited Public Fora, Subsidies, Copyright, and Other Speech Exceptions 2. Broadcast Media Regulation: Making Sense of Radio, Television, and Satellite Doctrine 3. Other Media Regulation: Voice Telephone and the Postal-Press System B. No Precedent for Strict or Intermediate Scrutiny of Content Promotion C. Wireline Regulation: An Unjustified Aberration IV. NORMATIVE ARGUMENT: LAWS PROMOTING DEMOCRATIC CONTENT SHOULD RECEIVE MINIMAL SCRUTINY FOR MERE VIEWPOINT-NEUTRALITY A. Promoting Democratic Content Furthers the First Amendment's Underlying Purposes B. The Political Branches Should Have a Role in Promoting Democratic Content C. Case Law Involving Newspapers Actually Supports This Framework V. HARD CASES A. Decentralized Communications Systems Should Be Favored Whatever Content They Produce B. The Individual Speech "Exception" VI. CONCLUSION: REPLACING CONTENT NEUTRALITY I. INTRODUCTION: CONTENT-BASED LAWS THAT PROMOTE FAVORED CONTENT

   Current free speech doctrine appears to rest on a mistake. Consider two hypothetical laws affecting American speech. First, cable carriers like Comcast and Time Warner offer video-on-demand TV service, through which customers can watch thousands of TV shows and movies "on demand," not on a predetermined schedule. (1) Suppose Congress determines that video-on-demand services could inform the public about key issues during an election campaign and passes a law requiring each local cable carrier to post, on demand, a ten minute campaign video from each candidate listed on the local ballot. Under current doctrine, this law--meant to promote informed democratic decision making--would likely be subject to the strictest constitutional scrutiny as "content-based" and be struck down as unconstitutional.

   Second, consider a network-neutrality requirement. Cable and phone carriers offer high-speed Internet service to consumers, (2) and traditionally did not block, degrade, or slow down certain Web sites. (3) That is, a user could access everything on the Internet, from CNN.com to the most obscure blog, without discrimination. In 2005 and 2006, phone and cable executives declared they would exercise their "editorial" control over their "pipes" and favor some Web sites while degrading or blocking others. (4) In 2008, the FCC found that Comcast blocked online technologies, including BitTorrent, that are used by software companies to compete with cable television. (5) Suppose Congress concludes that letting cable and phone companies restrict access to online content would reduce the diversity of sources and content available to Internet users, and therefore passes a "network neutrality" law enabling users to access and share all content online. (6) Many of the phone and cable companies and their defenders, including one leading constitutional scholar, argue that this law--which would condemn actions like Comcast's that employed the same censorship tools used in China (7)--would be unconstitutional for violating the free speech rights of telecommunications companies. (8) Under current doctrine, courts may agree. (9)

   How can the First Amendment be understood to invalidate, or even seriously question, these laws that promote diverse political speech? Much of the problem has to do with mistaken assumptions about the cornerstone of free speech doctrine: content analysis.

   Content analysis provides strict scrutiny for "content-based" laws (like the video-on-demand law) and a balancing test for "content-neutral" laws (like the network neutrality law). (10) Scholars, judges, and Justices almost uniformly assume that laws meant to promote favored content, even diverse or political content, are "content-based" and considered as problematic as those meant to suppress disfavored content. In fact, the Supreme Court has wrongly suggested that one of the "settled principles of our First Amendment jurisprudence" is to apply strict scrutiny to laws meant to promote an informed citizenry. (11) Scholars widely assume that this "settled" principle is normatively desirable, as content-based laws are seen as threats to freedom of speech. (12)

   The widely shared and deeply held assumptions about content analysis are wrong. They neither reflect existing law nor conform to the First Amendment's normative goals. Government need not be "neutral" regarding speech, and can promote particular classes of content. Government often favors content that is traditionally believed necessary for an informed citizenry, such as viewpoint-diverse, political, local, and educational content, (13) which here I call "democratic content." Democratic content is widely believed to deserve vigilant protection because of its role in democratic decision making (14) and because politicians have incentives to suppress such speech. (15) According to most precedent, in fact, content-based promotion is acceptable, subject to a mere viewpoint-neutrality requirement. (16) And such promotion should be acceptable, as it serves First Amendment values of participatory democracy and individual liberty.

   Although most precedent supports content-based promotion, (17) such promotion is questioned in two areas. The first is compelled individual speech in certain circumstances. I address this issue at the end of this Article. Generally, this exception makes sense, but for reasons other than content neutrality, and therefore does not support a claim for content neutrality.

   The second exception is the focus of this Article, both because this Article argues that we should abandon this particular exception (unlike the other) and because the exception's domain significantly impacts how Americans communicate with one another. This exception is for the regulation of speech carried over telephone and cable wires, (18) particularly certain services, such as cable television (including video-on-demand) and perhaps Internet service, though not wireline phone calls. (19) Wireline media may be the lone problematic exception in part because the Supreme Court most explicitly conflated content-based suppression and promotion in dicta in a landmark case involving a cable-access rule, Turner Broadcasting Co. v. FCC, in 1994. (20) Considering that Americans watch television for four hours a day and get most of their news from cable, broadcast TV, and the Internet, (21) this exception has a profound impact on American speech.

   Moreover, this "exception" could jeopardize the ambitious technology agenda of President Barack Obama. During the 2008 campaign, then-Senator Obama issued an ambitious "innovation agenda" calling for stringent media ownership rules, an unwavering commitment to network neutrality, and high-speed Internet access for all. (22) Indeed, increasingly, Congress, the FCC, and the States have been debating content-promoting communications policies, (23) including ownership limits and access rules, which consciously aim to promote access to private infrastructure for particular content--generally, diverse, educational, and political content necessary for an informed citizenry. (24) But, lower courts have wrongly used heightened scrutiny through content-analysis to invalidate wireline regulation meant to promote democratic content. These cases invalidate speech-enhancing legislative attempts and discourage other legislatures from passing similar laws. (25)

   Take, for example, network neutrality, which is highly contentious, (26) at the top of President Obama's campaign promises regarding technology, and far more practically important than academics' darling topics like flag burning or hate speech. (27) Every major consumer group has endorsed network neutrality; (28) Moveon.org and the Christian Coalition of America are in the same pro-network-neutrality coalition; (29) the Senate and House committees on commerce and on the judiciary have held hearings on network neutrality; (30) every Democratic presidential candidate in 2008, as well as Republican Mike Huckabee, endorsed network neutrality; (31) thousands of press and legal articles have discussed network neutrality; (32) at least four major bills have been introduced to codify network neutrality; (33) 800 rock bands have endorsed network neutrality, including OK Go, whose singer testified before Congress; (34) millions of Americans have shared and downloaded YouTube videos supporting network neutrality, as well as signed petitions to Congress. (35)

   Without network neutrality, unions could be blocked when trying to organize (which happened in Canada (36)); YouTube and its competitors would not provide a platform for political videos and parodies, (37) but would be squeezed to pay "taxes" to phone and cable companies (as phone executives have publicly wished (38)); and the Participatory Culture Foundation would not be able to offer its 3,500 channels of political and entertainment television for free online (which is why that organization filed with the FCC regarding Comcast's secret blocking of technologies used by Miro (39)).

   In response to the enormous public support for network neutrality, the phone and cable companies invested over $100 million in lobbying Congress and the FCC. (40) Should they fail with Congress and the FCC--which appears likely with Barack Obama's election--they will press First Amendment claims in the courts. Their frequent (and, of course, exceptional) First Amendment lawyer, Harvard Law School Professor Laurence Tribe, has already asserted that network neutrality laws would violate the First Amendment. (41) He does so largely on the shaky foundation of content analysis.

   To properly unpack the content distinction, and therefore to make First Amendment analysis relevant for the twenty-first century, we...