THE FCC'S DECISION, APPROVED BY THE SUPREME COURT, TO exempt broadband providers from the common carriage obligations traditionally imposed on telecommunications providers threatens free speech values. If the courts decline to hold that broadband providers are state actors subject to obligations under the First Amendment not to discriminate against content,1 then Congress should regulate broadband providers to reimpose (or require the FCC to reimpose) nondiscrimination obligations on them. Such regulation would not violate broadband providers' First Amendment rights, and would advance important free speech values that the Supreme Court has traditionally recognized in its jurisprudence adopting an affirmative conception of the First Amendment. Although the regulation I advocate would encompass some of the provisions embodied in proposed net neutrality legislation, my argument focuses specifically on regulation prohibiting broadband providers from discriminating on the basis of content. Other types of gatekeepers of Internet communications beyond broadband providers also enjoy the power to threaten free speech in this medium and should be monitored to ensure that they respect free speech values. In particular, in light of the extensive control that dominant search engines such as Google exercise over information on the Internet, it may be necessary for Congress to enact legislation prohibiting dominant search engines from unfairly or deceptively manipulating search results on an individualized basis.
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Publication information: Book title: Virtual Freedom: Net Neutrality and Free Speech in the Internet Age. Contributors: Dawn C. Nunziato - Author. Publisher: Stanford University Press. Place of publication: Stanford, CA. Publication year: 2009. Page number: 134.
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