Free Market versus Free Speech

To what extent are we comfortable mandating private companies (ISP's) to ensure equal access to all content providers?  The tension between an ISP's choice to provide premium services to preferred customers and providers and each content provider's 1st Amendment interest in publishing speech that all subscribers can access was explored in this weeks reading.

On the one hand, it seems that a private company should be able to provide premium services to paying customers, whether it be the typical subscriber deciding to upgrade to a higher bandwidth, or a content provider paying more for their website to be accessed more easily.  On the other, part of the great appeal of the web is the fact that everyone is able to publish easily accessible content.

The question raised by Frieden, which I think helps elucidate this issue, is to ask: to what extent are ISP's simply a service provider, and to what extent are they content providers whose decisions regarding private enterprise should be respected?  Frieden's conclusion is persuasive, because he makes a pretty fair argument.  ISPs should be considered one or the other, instead of being permitted to choose between the two to suit their own convenience.

Protecting Minors: Parents First, Regulation Second.

Following my blog from two weeks ago advocating education over censorship, I would like to posit this week that it is a superior policy position to rely on parental guidance and supervision instead of legislation to protect minors from obscene, indecent, or sexually explicit materials. 

Both of Congress’s attempts to protect children from pornographic material on the Internet, the Communications Decency Act of 1996 (CDA), and the Child Online Protect Act were struck by the United States Supreme Court based on First Amendment grounds.  Both attempts at regulation proved to be overbroad, and ultimately would have been rendered ineffective.

Rather than rely on statutes, which may prove to be almost impossible to draft in a constitutional manner, we should rely on parents, guardians, and other supervisors of minors to ensure that minors utilize the Internet in a safe manner.  The affirmative defenses to violations of the statute, e.g. the good faith effort to ensure minors don’t see the sexually explicit material, ultimately are unworkable.  Like most aspects of life, children and teenagers can find ways around credit card or registration requirements to access adult material. The onus is ultimately not on the State to protect the minors’ interests, but the minors’ parents or guardians.  

Prior Restraint, Egypt, and the "Internet Kill-Switch"

This week seemed to provide a perfect storm of sorts that aligned the reading with current events.  Specifically, I would point to the current social unrest and potential revolution in Egypt.  Of note for our purposes is the fact that it appears that large portions of the internet have been "shut down" by the Egyptian government.  This act has been condemned by many American citizens, as well as American politicians.  Ironically, a bill has been introduced in the Senate that would grant the U.S. president similar authority to shut down the internet on our own soil in the event of a "cyber attack."  This is known as the "Internet Kill Switch."

The details of the bill are not as blunt as my own summary, but critics of the bill argue that granting the President this type of authority could well lead to large portions of the internet being unavailable for use.  You can track the bill here.

As we gleaned from the cases on the Pentagon Papers, prior restraint is generally unfavored by the courts.  However, in times of war, in narrow circumstances, newspapers may be prohibited from publishing certain information that may endanger troops or help the enemy.  One commentator noted that with the proliferation of the internet and other modes of communication, prior restraint itself may be impossible.  However, with a tool like an internet blackout, it certainly seems that it would be possible to prohibit websites from publishing information deemed a threat to national security.