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Free Speech and the Myth of the Internet as an Unintermediated Experience

77 Pages Posted: 22 Sep 2009 Last revised: 21 Apr 2013

Christopher S. Yoo

University of Pennsylvania Law School; University of Pennsylvania - Annenberg School for Communication; University of Pennsylvania - School of Engineering and Applied Science

Abstract

In recent years, a growing number of commentators have raised concerns that the decisions made by Internet intermediaries - including last-mile network providers, search engines, social networking sites, and smartphones - are inhibiting free speech and have called for restrictions on their ability to prioritize or exclude content. Such calls ignore the fact that when mass communications are involved, intermediation helps end users to protect themselves from unwanted content and allows them to sift through the avalanche of desired content that grows ever larger every day. Intermediation also helps solve a number of classic economic problems associated with the Internet. In short, intermediation of mass media content is inevitable and often beneficial. Calls to restrict intermediation have also largely overlooked the longstanding tradition reflected in the Supreme Court’s First Amendment jurisprudence with respect to other forms of electronic communication recognizing how intermediaries’ exercises of editorial discretion promote free speech values. The debate also ignores the inauspicious/dubious history of past efforts to regulate the scope of electronic intermediaries’ editorial discretion, which were characterized by the inability to develop coherent standards, a chilling effect on controversial speech, and manipulation of the rules for political purposes.

Keywords: Internet, broadband policy, intermediation, mass media, net neutrality, editorial discretion, broadcast regulation, scarcity, Pacifica, cable television, privacy, security, dial-a-porn, time brokerage, Fairness Doctrine

JEL Classification: K23, L51, L86, L96, L98

Suggested Citation

Yoo, Christopher S., Free Speech and the Myth of the Internet as an Unintermediated Experience. George Washington Law Review, Vol. 78, Pg. 697, 2010; U of Penn, Inst for Law & Econ Research Paper No. 09-33; U of Penn Law School, Public Law Research Paper No. 09-26; TPRC 2009. Available at SSRN: https://ssrn.com/abstract=1475382

Christopher S. Yoo (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom St.
Philadelphia, PA 19104-6204
United States
(215) 746-8772 (Phone)

HOME PAGE: http://www.law.upenn.edu/faculty/csyoo/

University of Pennsylvania - Annenberg School for Communication ( email )

3620 Walnut St.
Philadelphia, PA 19104-6220
United States
(215) 746-8772 (Phone)

University of Pennsylvania - School of Engineering and Applied Science ( email )

3330 Walnut St.
Philadelphia, PA 19104-6309
United States
(215) 746-8772 (Phone)

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