Network Neutrality and Free
The First Amendment to the Constitution forbids Congress from “abridging the freedom of speech, or of the press.” As a result, all matters of speech—be they literary, artistic, political or scientific1—in the United States fall within the boundaries of First Amendment protection. Despite the appearance of equality of expression under the Constitution, however, Congress, the FCC, and the courts have over the years had to make choices about how to best encourage a robust free speech “system.”2 This has led to differing levels of First Amendment protection for different media,3 and the categorization of some speech as outside First Amendment protection.4 In other words, the boundaries of First Amendment protection are not the same for all speech in all formats.
Despite the nuances of First Amendment law, there are two primary interpretations of the purpose of the First Amendment. These, the libertarian and the social responsibility approaches, share a
1 Miller v. California, 413 U.S. 15 (1973).
2 Thomas I. Emerson, The System of Freedom of Expression, New York: Random House (1970).
3 For example, indecency in broadcasting may be banned under the First Amendment, but indecent expression in print may not be prohibited. See FCC v. Pacifica Foundation, 438 U.S. 726 (1978), sanctioning indecency regulation in broadcasting.
4 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) and 413 U.S. 15 (1973), for the Supreme Court opinions governing fighting words and obscenity, two categories of speech that receive no First Amendment protection.