Conduit-Based Regulation of Speech

Abstract

Architecture is destiny. As much as information today determines the contemporary wealth of nations, the physical world retains its relevance. Architecture affects crime rates, arguably even collegiality among professors. The interplay between the physical and the ethereal likewise shapes the constitutional doctrine that facilitates the free flow of ideas. The structure of a communicative medium dictates its performance. Awareness of the structure of information markets improves the calibration of intellectual property and refines legal responses to potential electronic bottlenecks. This article takes the next logical step: revealing the deep doctrinal structure of legal efforts to influence the design and maintenance of communicative conduits.

This article's examination of free speech jurisprudence begins by describing how any communicative medium can be visualized as three distinct physical, logical, and content-based layers. End-to-end design, the Internet's operative ideal, also provides a crucial doctrinal metaphor. Like the conduits through which communications pass, free speech jurisprudence can also be analyzed layer by layer. Cases involving the regulation of the time, place, or manner of speech comprise the physical layer, in which regulatory prerogative generally prevails. By contrast, most forms of content-based regulation draw strict scrutiny.

In a perverse twist of the end-to-end principle, the intelligence in first amendment jurisprudence resides at its edges. Though the Supreme Court has achieved doctrinal stability in reviewing content-based restrictions and time-place-manner rules, the Justices have behaved erratically whenever they have examined the intermediate logical layer - cases involving the regulation of specific communicative conduits. The Court has not developed a cogent approach to regulations designed to structure channels of communication that mediate between physical space and eventual expression. A generation ago, decisions affirming comprehensive federal power over broadcasting practically defined conduit-based regulation of speech. Broadcasting cases cannot be squared with strict scrutiny of content-based regulation of speech. Since 1978 the Supreme Court has proved quite uneven in keeping pace with technological changes in communications. After locating the doctrinal baseline established in the broadcasting cases, this article surveys more recent cases involving cable television and sexually explicit speech in a variety of media.

Four interrelated rationales for conduit-based regulation of speech have emerged: scarcity, regulatory intensity, the government's interest in enhancing voices, and a conduit's pervasiveness. Although each of these rationales is superficially plausible, deeper inspection counsels a skeptical regard for the notion that conduit-based regulation merits distinctive first amendment treatment. This article accordingly disavows the strategy of adjusting first amendment standards of review in response to putative differences among conduits. In reviewing conduit-based restrictions on speech, courts should remain wary of disguised efforts to control content. The end-to-end principle counsels simple standards for reviewing regulation aimed at the logical layer of speech. Real information is ideally transmitted on simple protocols that allow speakers and listeners to control all intelligence within a network. Likewise, a constitutional jurisprudence that minimizes reliance on conduit-based distinctions best protects free speech.

Keywords: free speech, constitutional law, first amendment, layered model of information, broadcasting, pornography, indecent speech, cable television, Internet, satellite television, public interest, FCC, Communications Deceny Act, CDA, Child Online Protection Act, COPA

JEL Classification: K23, L82, O33