Information Freedom, A Constitutional Value for the 21st Century

Abstract

On July 2, 2012, Verizon filed a brief with the United States Court of Appeals, District of Columbia Circuit, stating that the open-network, anti-discrimination rules adopted by the Federal Communications Commission “violate[d] the First Amendment by stripping [Verizon] of control over the transmission of speech on [its] network.” Verizon argued that its broadband network was its “microphone” and its “newspaper,” and in doing so essentially claimed the online communications of some 200 million Americans as its own.

This article provides a constitutional response to Verizon. It describes how U.S. First Amendment and communications law has evolved to a point where Verizon’s argument is possible, and compares U.S. law with network speech jurisprudence from a different but related constitutional culture. The First Amendment, while understood as a “free speech” protection, is not infrequently just the opposite -- either missing in action, or applied in a way to lessen the amount of speech, information, and opinion available to the public. One reason for this is that Courts have typically focused on its “government shall make no law” language rather than the “freedom of speech” phrase at the end of the First Amendment.

The German post-war constitution (the Grundgesetz or Basic Law), by contrast, incorporates a more affirmative idea of free speech, built on the ashes of a dictatorship that misused mass communications before and during World War II. The German Constitutional Court, seeking to break with the past, has read the Basic Law’s speech article (Article 5) to guarantee the “institutional freedom” of broadcasting and the press, and to protect speech and information-transfer as dynamic processes. Article 5 protects individual speech as the First Amendment does, but also requires the state to safeguard the opinion and information-transfer functions of electronic media, as a condition precedent to democracy.

This is a slightly edited version of the article that appeared at 36:1 Hastings International & Comparative Law Review 145 (2013).

Keywords: net neutrality, comparative constitutional law, electronic networks, free speech, telecommunications, information, common carriage, common carrier, First Amendment, Internet protocol, Brand X, Red Lion, German, Constitutional Court, Habermas, monopoly, competition