The New Scarcity: A First Amendment Framework for Regulating Access to Digital Platforms
65 Pages Posted: 23 Jul 2012 Last revised: 6 Sep 2012
Date Written: August 22, 2011
Digital media platforms such as broadband networks and search engines are increasingly viewed as 'gatekeepers' that enjoy disproportionate influence over modern speech. In response, policymakers have proposed - and in some instances adopted - regulations to ensure nondiscriminatory access to these platforms. This article examines the intersection of these new access regulations with the First Amendment. The literature continues to analyze these questions through the lens of traditional media technologies. Digital networks, however, differ from these prior technologies in critical, qualitative ways. First Amendment analysis of access regulations must therefore be updated to reflect these technological differences. Specifically, it must recognize the layered infrastructure of digital networks, and the significant differences between network-layer platforms and application-layer platforms. Accordingly, I propose a new conceptual framework - 'infrastructural scarcity' - for analyzing First Amendment challenges of access regulations. My proposed framework better reflects modern technological realities, and synthesizes the competing theoretical approaches of the 'positive rights' and 'negative rights' literature in new ways.
Keywords: broadband, First Amendment, network neutrality, FCC, search neutrality, media access
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