Transmitting, editing, and communicating: Determining what "the freedom of speech" encompasses

Duke Law Journal

Volumn 60, Issue 8, 2011, Pages 1673-1713

  Benjamin, Stuart Minor ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 79955721673     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (127)

1. See U.S. CONST. amend. I ("Congress shall make no law... abridging the freedom of speech....").
2. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969) (finding that "threat[s] of retaliation based on misrepresentation and coercion [are outside] the protection of the First Amendment").
3. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1768 (2004) ("At times the First Amendment's boundaries have figured in the case law and academic commentary, as with the familiar debates about whether obscenity, libel, fighting words, and commercial advertising are inside or outside the coverage of the First Amendment.").
4. In this article, I will use the term "freedom of speech" to refer to the freedom protected by the Free Speech Clause. That is, I will be using it in a specific legal context, not as a broader philosophical term. To avoid visual clutter, in most instances I will refer to the freedom of speech without quotation marks. By contrast, I will use the term "speech" to refer to its usage in the Free Speech Clause only when I so indicate.
5. For the purposes of this Article, I am focusing on the speech interests of Internet access providers-the entities that provide Internet service to customers. These companies have been the main opponents of net neutrality regulations and the main ones invoking the First Amendment against such regulations. Others in the Internet ecosystem-most notably, customers-have a different set of interests, and I do not address them in this Article.
6. The First Amendment encompasses more than the Free Speech Clause, of course. For the purposes of this Article, when I refer to the First Amendment I am referring to its Free Speech Clause component.
7. See Joseph D. Kearney & Thomas W. Merrill, The Great Transformation of Regulated Industries Law, 98 COLUM. L. REV. 1323, 1370 (1998) ("[T]he First Amendment has become the preferred constitutional assault vehicle for telecommunications companies challenging government regulation."). For a discussion of judicial scrutiny of speech regulations, see infra notes 24-25 and accompanying text.
8. See infra notes 54-56 and accompanying text. The question of what is encompassed by the First Amendment is different from the question of what is protected by the First Amendment. Some speech that is included within the freedom of speech-and thus covered by the First Amendment-may not be protected from regulation. Secret battle plans, for instance, are speech for First Amendment purposes, but courts, and many theorists, would nonetheless permit the regulation of their distribution. This Article focuses on the question of coverage- what the First Amendment encompasses. See FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 89-92 (1982) (discussing the distinction between First Amendment coverage and protection).
9. See Bernstein v. U.S. Dep't of Justice, 176 F.3d 1132, 1147 (9th Cir. 1999) (concluding that "encryption software, in its source code form and as employed by those in the field of cryptography, must be viewed as expressive for First Amendment purposes"), reh'g en banc granted and opinion withdrawn, 192 F.3d 1308 (9th Cir. 1999).
10. Lee Tien, Publishing Software as a Speech Act, 15 BERKELEY TECH. L.J. 629, 664-65 (2000) (arguing that using computer code is participating in scientific discourse and, therefore, is speech under the First Amendment).
11. See C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 1017-18 (1978) (arguing that "sexual behavior between consenting adults" is encompassed by the First Amendment).
12. See Robert Post, Encryption Source Code and the First Amendment, 15 BERKELEY TECH. L.J. 713, 716 (2000) ("[Another theorist] is fundamentally misguided to believe that he can explain First Amendment coverage 'without appealing to a grand theoretical framework of First Amendment values.' If First Amendment coverage does not extend to all speech acts, then such a framework is at a minimum necessary in order to provide the criteria by which to select the subset of speech acts that merit constitutional attention.").
13. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) ("It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail....").
14. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 573-74 (1995) (emphasizing the centrality of autonomy to the First Amendment); Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 641 (1994) ("At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.").
15. First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 777 n.11 (1978) ("Freedom of expression has particular significance with respect to government because '[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" (alteration in original) (quoting THOMAS I. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT 9 (1966))).
16. Mills v. Alabama, 384 U.S. 214, 218 (1966) ("[A] major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.").
17. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 CALIF. L. REV. 2353, 2372-73 (2000) (noting that the Supreme Court has not consistently followed any one theory of the First Amendment).
18. See Cass R. Sunstein, Minimalism at War, 2004 SUP. CT. REV. 47, 48 ("Many judges are minimalists; they want to say and do no more than necessary to resolve cases.... [Minimalists] attempt to reach incompletely theorized agreements, in which the most fundamental questions are left undecided. They prefer outcomes and opinions that can attract support from people with a wide range of theoretical positions, or with uncertainty about which theoretical positions are best. In these ways, minimalist judges avoid the largest questions about the meaning of the free speech guarantee, or the extent of the Constitution's protection of 'liberty,' or the precise scope of the President's authority as Commander in Chief of the Armed Forces." (footnote omitted)).
19. This is different, of course, from the question of whether such analysis-as opposed to other considerations-will actually persuade Justices. Whatever does, in fact, motivate Justices, my question here is how much work conventional legal analysis can do.
20. There are various terms that can be used to describe the entities involved. "[B]roadband Internet access service provider" is the full term that the FCC used in its order on the open Internet and net neutrality. See Preserving the Open Internet, 25 FCC Rcd. 17,905, 52 Commc'ns Reg. (P & F) 1, 49 (Dec. 21, 2010) (report and order). As a convenient shorthand in this Article, I will refer to "Internet access providers.".
21. See, e.g., Tim Wu & Christopher S. Yoo, Keeping the Internet Neutral?: Tim Wu and Christopher Yoo Debate, 59 FED. COMM. L.J. 575 (2007) (debating net neutrality).
22. Preserving the Open Internet, 52 Commc'ns Reg. (P & F) at 3.
23. Preserving the Open Internet, 25 FCC Rcd. 17,905, 52 Commc'ns Reg. (P & F) 1 (Dec. 21, 2010) (report and order).
24. See, e.g., Marvin Ammori, Beyond Content Neutrality: Understanding Content-Based Promotion of Democratic Speech, 61 FED. COMM. L.J. 273, 303 (2009) ("Government attempts to promote democratic content should be subject to a viewpoint-neutral test, not content analysis. The most widely accepted values underlying the First Amendment support this conclusion, and potential objections do not undermine it.");.
25. Bill D. Herman, Opening Bottlenecks: On Behalf of Mandated Network Neutrality, 59 FED. COMM. L.J. 103, 112 (2006) ("First Amendment values are best upheld by ensuring media diversity-not merely content diversity, but a diversity of stakeholders who have editorial control over that content.").
26. See, e.g., Rob Frieden, Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits, 12 U. PA. J. CONST. L. 1279, 1321 (2010) (asserting that Internet service providers (ISPs) are First Amendment speakers when they operate in a non-neutral way).
27. Randolph J. May, Net Neutrality Mandates: Neutering the First Amendment in the Digital Age, 3 ISJLP 197, 202-09 (2007) (discussing the different ways in which the First Amendment applies to net neutrality regulation).
28. Moran Yemini, Mandated Network Neutrality and the First Amendment: Lessons from Turner and a New Approach, 13 VA. J.L. & TECH. 1, 21 (2008) ("[C]lassifying network-neutrality rules as content neutral and therefore subject to intermediate scrutiny is not a hard case.").
29. See, e.g., Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) ("The Government may... regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.").
30. See, e.g., Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 662 (1994) ("[A] content-neutral regulation will be sustained if 'it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.'" (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968))).
31. See 5 U.S.C. § 706(2)(A) (2006) ("The reviewing court shall... hold unlawful and set aside agency action, findings, and conclusions found to be... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]").
32. See John Paul Stevens, The Freedom of Speech, 102 YALE L.J. 1293, 1296 (1993) ("I emphasize the word 'the' as used in the term 'the freedom of speech' because the definite article suggests that the draftsmen intended to immunize a previously identified category or subset of speech. That category could not have been co-extensive with the category of oral communications that are commonly described as 'speech' in ordinary usage.").
33. WILLIAM W. VAN ALSTYNE, INTERPRETATIONS OF THE FIRST AMENDMENT 24-26 (1984) (emphasizing the importance of determining whether some claimed speech is part of the freedom of speech).
34. Akhil Amar has argued that intratextualism-identifying terms appearing in different parts of the Constitution and interpreting them to have similar meanings-illuminates the meaning of "speech" under the Free Speech Clause. In particular, he contends that the term "speech" in the Speech or Debate Clause, which provides that senators and representatives "shall not be questioned in any other Place" for "any Speech or Debate in either House," U.S. CONST. art. I, § 6, applies only to political speech, and thus we should interpret the Free Speech Clause to cover only, or at least primarily, political speech. Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 815 (1999). For my purposes, it bears noting that Amar's interpretation of the First Amendment is widely contested, but that, if it were adopted, it would almost certainly doom any claim that a company's transmission of speech is covered by the Free Speech Clause.
35. See generally Adrian Vermeule & Ernest A. Young, Commentary, Hercules, Herbert, and Amar: The Trouble with Intratextualism, 113 HARV. L. REV. 730 (2000) (criticizing Amar's intratextualism).
36. LEONARD W. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY 4 (1960).
37. see also Stanley C. Brubaker, Original Intent and Freedom of Speech and Press, in THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING 82, 85 (Eugene W. Hickok, Jr. ed., 1991) ("The debates in Congress concerning the speech and press clauses shed scant light on the question of meaning.... Nor do we find enlightening comments in the state legislatures that considered the amendments or the local newspapers or pamphlets of the time.").
38. See, e.g., LEONARD W. LEVY, JEFFERSON & CIVIL LIBERTIES: THE DARKER SIDE 46 (1963) ("Jefferson, by contrast, never protested against the substantive law of seditious libel.... He accepted without question the dominant view of his generation that government could be criminally assaulted merely by the expression of critical opinions that allegedly tended to subvert it by lowering it in the public's esteem.").
39. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 22 (1971) ("In colonial times and during and after the Revolution [early political leaders] displayed a determination to punish speech thought dangerous to government, much of it expression that we would think harmless and well within the bounds of legitimate discourse.").
40. G. Edward White, Historicizing Judicial Scrutiny, 57 S.C. L. REV. 1, 60, 60 n.294 (2005) ("Since the First Amendment only applied against Congress, this approach assumed that the federal government could punish seditious, libelous, blasphemous, obscene, or indecent speech with impunity so long as it did not censor the speech in advance.").
41. see also 4 WILLIAM BLACKSTONE, COMMENTARIES *151 ("The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.").
42. See, e.g., Julian N. Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 SUP. CT. REV. 105, 129 ("The framers of the First Amendment could scarcely have anticipated its application to the corporate form. That, of course, ought not to be dispositive. What is compelling, however, is an understanding of who was supposed to be the beneficiary of the free speech guaranty-the individual.").
43. Compare Citizens United v. FEC, 130 S. Ct. 876, 950 (2010) (Stevens, J., concurring in part and dissenting in part) ("Unlike our colleagues, [the Framers] had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind."), with id. at 928 (Scalia, J., concurring) ("[T]he individual person's right to speak includes the right to speak in association with other individual persons.... The association of individuals in a business corporation... cannot be denied the right to speak on the simplistic ground that it is not 'an individual American.'").
44. See LLOYD L. WEINREB, LEGAL REASON: THE USE OF ANALOGY IN LEGAL ARGUMENT 96 (2005) (stating that "analogical reasoning is not a convenience but a necessity" in the law).
45. Or, if the analogy is weak, that may suggest that less weight should be given to the reasons for the rule to which the analogy points.").
46. see also Emily Sherwin, A Defense of Analogical Reasoning in Law, 66 U. CHI. L. REV. 1179, 1196 (1999) (remarking that the important part of analogical reasoning is "the sense of obligation to study prior cases and either conform to them or explain why they should be disregarded").
47. Cass R. Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 741, 775 (1993) ("Principles [of law] are... both generated and tested through confrontation with particular cases.").
48. For two different discussions of faithful interpretation of the Constitution, see generally PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982);SANFORD LEVINSON, CONSTITUTIONAL FAITH (1989).
49. SANFORD LEVINSON, CONSTITUTIONAL FAITH (1989).
50. A regulation that discriminated against the transmission of political speech, or speech on behalf of a political party, would trigger the application of the First Amendment. But the problem would be the government seeking to suppress speech based on its content or viewpoint, and that would occur whether the underlying activity was the transmission of speech or the transmission of electricity.
51. See, e.g., Ellis v. Am. Tel. Co., 95 Mass. (13 Allen) 226, 231-32 (1866) ("[A]n owner or manager of [a telegraph] line becomes to a certain extent a public servant or agent.... He cannot refuse to receive and forward despatches; nor can he select the persons for whom he will act.... He is required to send [messages] for every person who may apply, at a usual or uniform tariff or rate, without any undue preference, and according to established regulations applicable to all alike.").
52. See infra notes 60-68 and accompanying text.
53. See Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 727, 739 (1996) (plurality opinion) (contrasting editors and common carriers for First Amendment purposes).
54. Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 655 (1994) ("Given cable's long history of serving as a conduit for broadcast signals, there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator.").
55. FCC v. League of Women Voters, 468 U.S. 364, 378 (1984) (distinguishing between broadcasters and common carriers for First Amendment purposes); Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980) (rejecting a shopping center owner's challenge to a state law preventing the owner from restricting messages expressed on its property because the shopping center is "a business establishment that is open to the public" and, thus, "[t]he views expressed by members of the public in passing out pamphlets or seeking signatures for a petition... will not likely be identified with those of the owner").
56. Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622 (1994). Turner I was a First Amendment challenge to the "must carry" provisions, which require cable operators to carry local television broadcasters.
57. The most the Court has been willing to say is that applying the First Amendment to a regulation treating cable operators (who do have speech rights) as common carriers "is not frivolous." FCC v. Midwest Video Corp., 440 U.S. 689, 709 n.19 (1979) ("The court below suggested that the Commission's rules might violate the First Amendment rights of cable operators. Because our decision rests on statutory grounds, we express no view on that question, save to acknowledge that it is not frivolous and to make clear that the asserted constitutional issue did not determine or sharply influence our construction of the statute."). In Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989), a case invalidating statutory restrictions on telephone companies' carriage of indecent telephone messages, Justice Scalia, writing for himself in a concurrence, stated that "while we hold the Constitution prevents Congress from banning indecent speech in this fashion, we do not hold that the Constitution requires public utilities to carry it." Id. at 133 (Scalia, J., concurring). In a similar vein, several lower courts rejected First Amendment challenges to telephone companies' decisions not to carry indecent messages on the grounds that the telephone companies were not state actors. See Info. Providers' Coal. for Def. of the First Amendment v. FCC, 928 F.2d 866, 877 (9th Cir. 1991) ("Carriers are private companies, not state actors[,] and accordingly are not obliged to continue, restrict or terminate the services of particular subscribers. Thus, a carrier is free under the Constitution to terminate service to dial-a-porn operators altogether." (citation omitted)); Carlin Commc'ns, Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1297 (9th Cir. 1987) ("The question is whether state action also inhered in Mountain Bell's decision to adopt a policy excluding all 'adult entertainment' from the 976 network. We hold that it did not."); Carlin Commc'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1361-62 (11th Cir. 1986) (finding no state action).
58. see also Denver Area Educ. Telecomms. Consortium, 518 U.S. at 825 (Thomas, J., concurring in part and dissenting in part) ("Common carriers are private entities and may, consistent with the First Amendment, exercise editorial discretion in the absence of a statutory prohibition."). None of these points bears on the question whether a regulatory prohibition on common carriers' exercise of editorial discretion implicates the First Amendment. As I discuss in Part III, any carrier or provider can be a speaker for First Amendment purposes if it communicates messages through its manipulation of bits. The issue addressed in this Article is the contexts in which Internet access providers are engaged in such communications.
59. See Cable Communications Policy Act of 1984 § 613(b), 47 U.S.C. § 533(b) (1994) (repealed 1996) (prohibiting any common carrier from directly or indirectly providing video programming to its subscribers).
60. US West, Inc. v. United States, 48 F.3d 1092, 1102 (9th Cir. 1994) (quoting US W., Inc. v. United States, 855 F. Supp. 1184, 1191 (W.D. Wash. 1994)), vacated, 516 U.S. 1155 (1996).
61. see also Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d 181, 190 (4th Cir. 1994) ("It is clear that the provision of cable television service is a form of 'speech' protected by the First Amendment."), vacated, 516 U.S. 415 (1996).
62. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006).
63. United States v. O'Brien, 391 U.S. 367, 376 (1968) ("We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea.").
64. Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993) (quoting this language from O'Brien with approval); Texas v. Johnson, 491 U.S. 397, 404 (1989) (same). The quoted language from Rumsfeld, in focusing on conduct alone, has been subject to some criticism. See Dale Carpenter, Unanimously Wrong, 2006 CATO SUP. CT. REV. 217, 243 ("No prior majority opinion on the subject has suggested that in deciding whether conduct is expressive we should look only at the conduct itself, rather than at both the conduct and the context in which it occurs."). But whether the focus is on conduct alone or conduct plus context, the key point is that there must be meaningful expression.
65. Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam)).
66. See Reply Comments of the National Cable & Telecommunications Ass'n at 41-42, Preserving the Open Internet, 25 FCC Rcd. 17,905, 52 Commc'ns Reg. (P & F) 1 (Dec. 21, 2010) (report and order) (GN Docket No. 09-191), available at http://fjallfoss.fcc.gov/ecfs/document/view?id=7020437442 ("The same 'it's-just-transmission' argument could be made... about providers of cable service, given the fact that cable operators ultimately deliver the speech that they have chosen to offer to their customers.").
67. Comments of Verizon & Verizon Wireless at 112, Preserving the Open Internet, 52 Commc'ns Reg. (P & F) 1 (GN Docket No. 09-191), available at http://fjallfoss.fcc.gov/ecfs/document/view?id=7020378523 (analogizing Internet access providers to cable operators).
68. LAURENCE H. TRIBE & THOMAS C. GOLDSTEIN, PROPOSED "NET NEUTRALITY" MANDATES COULD BE COUNTERPRODUCTIVE AND VIOLATE THE FIRST AMENDMENT 3 (2009), available at http://fjallfoss.fcc.gov/ecfs/document/view?id=7020375998 (same);.
69. Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 636 (1994) (alteration in original) (citation omitted) (quoting City of Los Angeles v. Preferred Commc'ns, Inc., 476 U.S. 488, 494 (1986)). As the internal quotation indicates, the Court put forward the same test in City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986).
70. Turner I, 512 U.S. at 636 (quoting Preferred Commc'ns, 476 U.S. at 494).
71. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 63-64 (2006) ("The compelled-speech violation in each of our prior cases, however, resulted from the fact that the complaining speaker's own message was affected by the speech it was forced to accommodate.... In this case, accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions.").
72. On self-government and democratic deliberation, see generally ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948).
73. ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 119-78 (1995).
74. CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993).
75. Harry Kalven, Jr., The New York Times Case: A Note on "the Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191. On the marketplace of ideas, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).
76. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
77. JOHN STUART MILL, ON LIBERTY 9-10 (Elizabeth Rapaport ed., Hackett Publ'g Co. 1978) (1859).
78. On the search for truth, see generally William P. Marshall, In Defense of the Search for Truth as a First Amendment Justification, 30 GA. L. REV. 1 (1995).
79. On autonomy, see generally C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 194-224 (1989).
80. Richard H. Fallon, Jr., Two Senses of Autonomy, 46 STAN. L. REV. 875 (1994);.
81. Harry H. Wellington, On Freedom of Expression, 88 YALE L.J. 1105 (1979).
82. On the checking function, see generally Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521.
83. On self-expression, see generally MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS (1984).
84. David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA. L. REV. 45 (1974). No theory has been widely accepted as explaining or driving First Amendment doctrine.
85. DANIEL A. FARBER, THE FIRST AMENDMENT 6 (2d ed. 2002) ("For a while there was a trend toward single-value theories of First Amendment law, in which a scholar would posit a single underlying constitutional value and then attempt to deduce all First Amendment doctrine from that value. Such efforts, whatever their merits, never seemed to persuade many other scholars and were almost entirely ignored by the courts.").
86. See Lillian R. BeVier, On the Enduring Dilemma of Judicial Review, 39 EMORY L.J. 1229, 1238-39 (1990) ("[T]here is consensus that political speech is at the amendment's core. Even today, however, there is no agreement about the periphery, about the other kinds of speech the amendment protects and why. Nor is there consensus yet about the underlying rationale for the protection of political speech.").
87. Paul B. Stephan III, The First Amendment and Content Discrimination, 68 VA. L. REV. 203, 207-08 (1982) (stating that "the central meaning of the First Amendment lies in its protection of debate of public issues").
88. See, e.g., Jeannine Bell, O Say, Can You See: Free Expression by the Light of Fiery Crosses, 39 HARV. C.R.-C.L. L. REV. 335, 339 (2004) (arguing that the marketplace of ideas paradigm overprotects hate speech).
89. In some situations a regulation of specific kinds of transportation may be an attempt to suppress content and thus implicate the freedom of speech. Imagine a statute that prohibited use of the roads for political purposes. This is the theory behind the application of the First Amendment to regulations of campaign expenditures and contributions: when the government limits the use of money to pay for political speech, it is singling out for regulation one of many inputs into speech. The point of the jurisprudence is not that money equals speech, but that regulations aimed at political speech implicate the First Amendment, even when they target an input of speech rather than the speech itself.
90. See Buckley v. Valeo, 424 U.S. 1, 16 (1976) ("[T]his Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment.").
91. Eugene Volokh, Why Buckley v. Valeo Is Basically Right, 34 ARIZ. ST. L.J. 1095, 1101 (2002) ("Money isn't speech. But restricting speech that uses money is a speech restriction."). This is quite different from a law prohibiting discrimination in the transmission of bits, which of course does not target content in any way.
92. Robert Post argues that communication of ideas is necessary but not sufficient under the marketplace of ideas. But communication of ideas is a sine qua non.
93. Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 636 (1994) (quoting City of Los Angeles v. Preferred Commc'ns, Inc., 476 U.S. 488, 494 (1986) (alteration in original)).
94. See, e.g., Roth v. United States, 354 U.S. 476, 484 (1956) (stating that the First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people").
95. Steven G. Gey, Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, 95 IOWA L. REV. 1259, 1274 (2010) ("The Supreme Court has been very clear about the First Amendment requirement that speakers must engage in definitive communication before receiving constitutional protection for speech.").
96. Frederick Schauer, Speech and "Speech"-Obscenity and "Obscenity": An Exercise in the Interpretation of Constitutional Language, 67 GEO. L.J. 899, 920 (1979) ("The Court is saying that the communication of ideas is at once the essential first amendment purpose and the essential first amendment property.").
97. One might reasonably ask what work "self-expression" is doing in the formulation in the text, on the assumption that self-expression is a substantive communication. Adding "self-expression" clarifies the inclusion of forms of expression that have been recognized as implicating the freedom of speech even though they arguably do not entail a clear substantive communication-in particular, recognized forms of art and symbolism.
98. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 569 (1995) ("The protected expression that inheres in a parade is not limited to its banners and songs, however, for the Constitution looks beyond written or spoken words as mediums of expression. Noting that '[s]ymbolism is a primitive but effective way of communicating ideas,' our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even '[m]arching, walking or parading' in uniforms displaying the swastika. As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a 'particularized message,' would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." (alterations in original) (citations omitted) (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943).
99. Nat'l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 43 (1977) (per curiam); Spence v. Washington, 418 U.S. 405, 411 (1974) (per curiam))). One may reasonably contend that works of art and symbolism, and self-expression more generally, do entail a substantive communication, so adding "or self-expression" in fact adds nothing to the category of "substantive communication." I include both terms only in an excess of caution, to ensure that I have included everything that has been treated as part of the freedom of speech.
100. Even if "self-expression" does add something to "substantive communication," it does not do so in the context of Internet access providers. It seems safe to say that Internet access providers do not produce works of art or symbolism, and it is difficult to imagine what activities of an Internet access provider could constitute "self-expression" but not "substantive communication." (Indeed, one may fairly claim that no activity of an Internet access provider could be self-expression, but that is a stronger claim that is not necessary for this argument.) For ease of exposition, I will simply refer to substantive communication in the remainder of this Article, given that "self-expression" may not add anything and, in any event, does not add anything in terms of the activities in which Internet access providers engage.
101. See, e.g., Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 66 (2005) (noting that the Supreme Court has "extended First Amendment protection only to conduct that is inherently expressive"); Spence, 418 U.S. at 409 (finding that the display of an American flag with peace symbols was an activity "sufficiently imbued with elements of communication to fall within the scope of the First and Fourth Amendments").
102. Hurley, 515 U.S. at 569.
103. The closest thing to a coherent message would be "Cable television service is worth every penny you're paying for it.".
104. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557 (1995).
105. see also Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 CORNELL L. REV. 1277, 1304 (2005) ("Under nearly every theory of free speech, the right to free speech is at its core the right to communicate-to persuade and to inform people through the content of one's message.").
106. In the remainder of this Article, I will use the term "message" to refer to one or more messages for the sake of convenience and brevity, thereby avoiding the repetition of the awkward "message or messages.".
107. See, e.g., Melville B. Nimmer, The Meaning of Symbolic Speech Under the First Amendment, 21 UCLA L. REV. 29, 36 (1973) ("Whatever else may or may not be true of speech, as an irreducible minimum it must constitute a communication. That, in turn, implies both a communicator and a communicatee-a speaker and an audience.").
108. KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE 54 (1989) ("When the message is an aspect of what the actor is trying to do and is understood by the audience as such, we can say comfortably that the act communicates the message and that the free speech principle is relevant.").
109. Thomas Scanlon, A Theory of Freedom of Expression, 1 PHIL. & PUB. AFF. 204, 206 (1972) ("[By] 'acts of expression'... I mean to include any act that is intended by its agent to communicate to one or more persons some proposition or attitude.").
110. John Greenman, On Communication, 106 MICH. L. REV. 1337, 1341 (2008).
111. Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 636 (1994) (alteration in original) (quoting City of Los Angeles v. Preferred Commc'ns, Inc., 476 U.S. 488, 494 (1986)).
112. See Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) ("[G]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.").
113. Associated Press v. United States, 326 U.S. 1, 19-20 (1945) (applying generally applicable antitrust laws to a company's core First Amendment activities); see also Associated Press, 326 U.S. at 7 ("The fact that the publisher handles news while others handle food does not... afford the publisher a peculiar constitutional sanctuary in which he can with impunity violate laws regulating his business practices.").
114. Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575 (1983).
115. Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987).
116. see also Turner I, 512 U.S. at 640-41 ("[L]aws that single out the press, or certain elements thereof, for special treatment 'pose a particular danger of abuse by the State,' and so are always subject to at least some degree of heightened First Amendment scrutiny." (quoting Ark. Writers' Project, 481 U.S. at 228)).
117. Leathers v. Medlock, 499 U.S. 439 (1991).
118. For example, the vertical concentration limits, which limit the percentage of channels in which a cable operator has an ownership interest that it can include in its lineup, constrain operators' choices of which channels to air. See 47 U.S.C. § 533(f)(1)(B) (2006) ("[The FCC] shall establish[] reasonable limits on the number of channels on a cable system that can be occupied by a video programmer in which a cable operator has an attributable interest...."); Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1130 (D.C. Cir. 2001) (applying First Amendment scrutiny to rules promulgated under § 533(f)(1)(B)).
119. See Time Warner Entm't Co. v. FCC, 93 F.3d 957, 973 (D.C. Cir. 1996) (finding that such regulation could present First Amendment issues, but rejecting a facial challenge to the particular statute at issue).
120. Time Warner Entm't Co. v. FCC, 56 F.3d 151, 181-82 (D.C. Cir. 1995).
121. See Christopher S. Yoo, Architectural Censorship and the FCC, 78 S. CAL. L. REV. 669, 687 (2005) (contending that "rate regulation had the unintended consequence of degrading the quality of existing cable offerings and foreclosing the emergence of higher quality channel packages despite viewers' willingness to pay for them").
122. The Supreme Court has invalidated statutes giving local officials authority to permit or ban distribution of newspapers and other forms of speech, but those cases focus on the possibility of content and viewpoint discrimination created by unbridled discretion to permit or ban.
123. See City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 767-68 (1988) ("[T]his Court has long been sensitive to the special dangers inherent in a law placing unbridled discretion directly to license speech, or conduct commonly associated with speech, in the hands of a government official.").
124. see also Saia v. New York, 334 U.S. 558, 562 (1948) ("When a city allows an official to ban [loud-speakers] in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas.").
125. Lovell v. City of Griffin, 303 U.S. 444, 450-51 (1938) (invalidating a regulation prohibiting the distribution of leaflets without the approval of the city manager). Indeed, in Lakewood the Court stated, This is not to say that the press or a speaker may challenge as censorship any law involving discretion to which it is subject. The law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.
126. Lakewood, 486 U.S. at 759.
127. If, for example, free speech, properly understood, is about individual self-expression or personal autonomy, then decisions by a corporation do not qualify because there is no individual self-expression or personal autonomy involved.