Beyond Content Neutrality: Understanding Content-Based Promotion of Democratic Speech
Stanford Law School - Center for Internet & Society; Democracy Fund (Omidyar Group)
April 15, 2009
Federal Communications Law Journal, Vol. 61, No. 273, 2009
Historically, our nation has adopted policies meant to promote informed debate and diverse, political speech. Recently, courts have held these policies to be burdens on the First Amendment rights of large media and telecommunications companies. These companies argue that government cannot promote political speech through these media. They argue that such attempts involve government messing with the "content" of our speech market, and violating the media and telecom companies' free speech rights. Increasingly, courts have been giving these arguments credit. Today, most laws meant to promote citizens' access to diverse political speech are subject to media and telecom companies' First Amendment challenges. These laws include the foundations of President Obama's Technology and Innovation agenda, from media ownership limits to network neutrality to wireless openness to universal build-out of high-speed networks. These arguments, under current doctrine, seem to be very powerful tools to overruling much of the President's tech agenda. These arguments, however, are wrong. And their wrongness reveals a fundamental insight about First Amendment doctrine that most scholars and judges have overlooked.
Scholars and judges generally assume that the cornerstone of free speech doctrine is the distinction between content-based and content-neutral laws. Despite the distinctions wide acceptance, the distinction lacks any precedential or normative basis unless it also accounts for an equally important distinction. The scholars conventional view of content-analysis overlooks the difference between government banning a book or recommending it. Content-based laws that suppress specific content, like banning a television show, should be problematic, but content-based laws that promote specific content, such as promoting educational and political shows, should not be.
Precedent and the First Amendments' underlying normative concerns both require this distinction and support content-based laws promoting democratic content. The precedent in almost every area of First Amendment doctrine applies minimal scrutiny to content-based promotion. To reach these results, courts usually claim to apply one of several 'exceptions' to content-analysis, but these many exceptions actually add up to a rule: content-based promotion of speech does not receive heightened scrutiny. This rule serves the normative goals of the First Amendment. Exceptions to this rule - the most notable of which applies to emerging electronic media - are a judicial mistake that should be corrected.
Number of Pages in PDF File: 52
Keywords: First Amendment, Free Speech, Media, Telecommunications, Content-Based, Strict Scrutiny, Constitutional Law, Network neutrality
JEL Classification: K19
Date posted: December 28, 2007 ; Last revised: April 27, 2009