Luis Villa posed a good question in response to my essay yesterday wondering why Yale’s tech agenda for the next administration does not include anything about online free speech. I had noted that “I found it intriguing… that protecting free speech doesn’t make their radar screen, which seems both sad and puzzling since it will continue to be under attack regardless of who is in charge next year.” In response, Luis noted:
I guess I’m failing to see the significant speech problems in the modern internet, Adam- care to elaborate? Do you mean the kinds of problems Open Net Initiative has been working on, or something else? I strongly agree with you that free speech should be a core value for the internet, but at least inside the US, the internet seems to be clearly the most vibrant and free platform for speech that there is, with no significant threats to it that I’m aware of, which maybe is why it fell off this particular list.
This is a fair question. But as evidence of what I regard as the continuing threats to free speech–both online (new, interactive media) and off (old, passive media)–I would draw everyone’s attention to this compendium of Online Child Protection & Online Content Regulation Bills that CDT and PFF jointly complied. It documents the dozens of measures pending currently in Congress, and we are about to add more to the list. Importantly, if we would have included state and local measures, the index would have been much, much longer. John Morris and I each published commentaries discussing why these threats to speech should be taken seriously. (Here’s John’s; here’s mine.)
Now, one could argue that because none of these measures have yet passed into law, we have nothing to worry about. But I believe such a position would be quite short-sighted. Eventually, when policymakers throw enough stuff at the wall, something will likely stick. [Moreover, sometimes the sheer volume and nature of legislative activity can have a chilling effect on speech without every becoming law.]
One might then respond, “So what? If something passes, we’ll knock it down in court with the First Amendment like we have done for the past 10 years!” A fair point, but that’s always a risky gamble. We’ve been fortunate so far that the courts have upheld speech rights in most new media cases, but there’s a storm on the horizon that will hit when the courts are finally force to deal with this mess of asymmetrical First Amendment media standards (i.e, the differential treatment of speech on various media platforms). The key question is: How will speech be regulated as those platforms converge and speech becomes one big bucket of digital bits? If you are interested, I dealt with this dilemna in far more detail in my recent Catholic University Law School law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.” As you might imagine, I favor setting the bar quite high by rejecting the old broadcast “public interest” approach to speech regulation and I instead favor the application of the print / Internet / video game standard (i.e., strict scrutiny of all speech-related regulatory efforts).