Accessibility of Free Speech and the Marketplace of Ideas

Tribe and Goldstein argue that net neutrality mandates would violate First Amendment rights. What they do not do is explain what exactly the First Amendment means in the “digital age”. They explain the First Amendment in a piecemeal fashion. I would have been more convinced (since I generally agree with them) had they taken the time to first explain how the First Amendment and free speech should be interpreted today.

Free speech in the analog world and the digital world are different. Each world has its own structure and mechanisms. The biggest difference between the two worlds is that in the digital world, a person’s free speech is capable of reaching a much larger number of people than in the analog world (N.B. unless one is a well-known public figure). Does the right to free speech include the right to have that speech be accessible to all? During the time of the Framers, it was not logistically possible to have full accessibility to speech; however, today it is. If the internet were a public forum, then maybe everyone should have access to the speech of those in the forum (unless someone’s speech disrupts the integrity of the forum), but the internet is not a public forum. It seems that the Government has little justification in trying to ensure that “the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers.” (2)

Connecting last week’s readings to the net neutrality debate, it is interesting to consider how the marketplace of ideas would fit in. J.S. Mill believes that such a market allows the truth to be revealed. In the case of net neutrality one can argue both for and against mandates. Those who would be in favor could argue that if all voices are not represented equally then the truth may never be achieved. Those who are against mandates could argue that the marketplace for BSPs would become static and little innovation would occur with mandates -- possibly limiting the development of the internet itself and the information that we can find on it. In a way BSPs participate in a Darwinian process where the best ideas and sites succeed and thus become easily accessible.