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

IN THIS CHAPTER, I ANALYZE THE STRANDS OF THE AFFIRMATIVE conception of the First Amendment in the Supreme Court's foundational First Amendment jurisprudence and the FCC's speech regulations. Courts and policymakers should reconsider the important free speech values embodied in the affirmative conception and embrace these values in regulating powerful private conduits of Internet expression. I illuminate the Supreme Court's and the FCC's early adoption of the affirmative conception of the First Amendment by examining the evolution of five doctrines—the public forum doctrine, the state action doctrine, the fairness doctrine, must carry regulations, and the common carriage doctrine. These doctrines were predominately adopted and strengthened in the mid-twentieth century but substantially weakened by the end of the twentieth century, leading to the current contours of Internet speech regulation in which private entities control speech on the Internet unconstrained by state regulation.

The public forum doctrine imposes affirmative obligations on the state not to discriminate against speakers or speech on certain public property in order to facilitate public discussion and debate. The state action doctrine extends these and other obligations to powerful private actors who serve the same relevant functions as the state. The fairness doctrine charges broadcasters with the obligation to provide balanced and fair coverage of issues of public importance to enhance public deliberation and debate, while must carry regulations require cable operators to carry broadcast coverage of local and public affairs programming to ensure public access to a multiplicity of information sources. The common carriage doctrine charges private conduits for communication

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