Deregulation Reconsidered: Protecting Internet Speech in the United States, Germany, and Japan

Article excerpt

The movement toward deregulation of telecommunications is a worldwide phenomenon, even though there is little or no general pattern. This article examines its definitive or probable consequences on freedom of expression on the Internet in the United States, Germany, and Japan. Because the experiences of making telecommunications policy in these three countries differ in many aspects, and each has some unique features, they likely provide useful lessons for the rest of the world, especially for countries that are in the initial stage of developing or restructuring their telecommunications infrastructures. The article ultimately analyzes whether deregulation upholds Internet users' free speech rights and frames the role for the state in developing a new communication environment in a way different from that traditionally believed.

I. MARKETPLACE AND THE FIRST AMENDMENT: THE AMERICAN CASE

Any discussion of freedom of speech in the United States must start with the First Amendment, because the notion of free speech is embodied in that amendment to the U.S. Constitution. (1) The First Amendment is the ultimate protection for communicators in the United States. It also has influenced all of communications industries in the nation, and it will continue to permeate most of the biggest communication and free speech issues of tomorrow.

The First Amendment "rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." (2) Even though the First Amendment presumes that free speech is essential for enhancing diversity, it still needs a specific method to pursue the free speech goal.

The United States has placed great trust in the compatibility of market competition with the American dedication to freedom of expression. The faith in the free market guided the Federal Communications Commission's (FCC) comprehensive programs of deregulation throughout the 1980s, particularly with the appointment of Mark Fowler (3) as chairman in 1981. This tendency has been adopted by each of his successors, and this regulatory history eventually encouraged Congress to devise and adopt the Telecommunications Act of 1996 (1996 Act). (4)

The marketplace of ideas is a metaphor for an environment in which the government's regulation of communications is limited. The marketplace metaphor remains an integral part of contemporary legal reasoning behind the First Amendment. Recently, it is characterized by the restrictive application of the public forum doctrine to the Internet. Because "the constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state," (5) the amount of First Amendment protection the Internet receives depends upon which category of forum it belongs to. The greatest protection for expression has been bestowed on the public forum.

Since the public forum doctrine was first pronounced in Hague v. Committee for Industrial Organization (6) in 1939, it has protected many speech activities by producing both public function and government entanglement tests. (7) The public forum doctrine has been severely limited since the early 1970s. (8) As long as the doctrine is interpreted restrictively, the private characteristics of the Internet make it difficult for courts to apply First Amendment standards to a new electronic environment. Such restriction bestows only the minimum amount of protection for expression.

In 1996, the status of the Internet was disputed in Cyber Promotions, Inc. (Cyber) v. America On-Line, Inc. (AOL). (9) At stake in this case was the right of AOL to block junk e-mail being sent from Cyber to AOL subscribers. (10) This case presented a novel constitutional issue of Interact users' freedom to send commercial e-mail messages unfettered, and uncensored by their service providers. …