Virtual Freedom: Net Neutrality and Free Speech in the Internet Age

ANY DISCUSSION OF THE MEANING OF THE FIRST AMENDMENT'S free speech guarantee might well begin with the text itself: “Congress shall make no law… abridging the freedom of speech, or of the press….” This seemingly straightforward mandate has been subject to volumes of theories of interpretations since its adoption—theories of why freedom of expression is so highly valued in our society, of what types of expression fall within the scope of the Amendment's protection, and of what types of entities are prohibited from abridging the freedom of expression. While these interpretational questions are all interrelated, I focus my attention on the latter inquiry— exactly which types of entities are prohibited from abridging individuals' freedom of expression? Should powerful “private” conduits of expression be held to fall within the scope of this prohibition, in addition to “Congress”? If so, is the state permitted to regulate to ensure the free flow of information in the hands of these private entities? Under what circumstances? Should we trust the state to regulate in order to advance these goals? In this chapter I focus on this interpretational strand of First Amendment theory and on what I refer to as the affirmative and negative conceptions of the First Amendment.

Simply stated, under the negative conception of the First Amendment, freedom of expression is a “negative liberty,”¹ and the state's primary (or only) role is a negative one—to get out of the way and to allow (well-functioning, competitive) marketplaces for speech to flourish free of state intervention. Under the affirmative conception, in contrast, the state is justified in doing more than nothing; rather, it is justified in intervening in marketplaces for speech to achieve important societal goals—to bring about conditions necessary for democratic self-government—by prohibiting discrimination by powerful conduits of expres

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