Paradox and Structure: Relying on Government Regulation to Preserve the Internet's Unregulated Character

Abstract

The Internet's power as a communications medium has been the focus of a great deal of attention, but the Internet still lacks uniform and readily understood rules for much of what goes on there. Recently, there has been a flurry of activity to create such rules, with particular emphasis on private regulation of activity on the Internet.

In this article, I examine one area of Internet regulation, the regulation of mature content. After evaluating different methods for Internet content regulation, I conclude that the most efficient form of Internet content regulation is ratings-based filtering, with Internet content providers having the responsibility for applying ratings to their content. In order to preserve the Internet's value as a place of free development of both ideas themselves and ideas about how to share ideas, any such regime must be voluntary.

Because market forces are an inadequate brake on overreaching by private Internet content regulators - and because private entities are poorly situated to provide Internet content regulation - the federal government is the best potential source of Internet content regulation. The key to efficient and effective government regulation of mature content on the Internet is the use of power-conferring, instead of proscriptive, rules. Reliance on federal Internet content regulation as implemented through power-conferring rules may have the practical effect of spreading free speech protections across international borders. Finally, I address the constitutionality of federal Internet content regulation and conclude that any system of federal Internet content regulation must be voluntary.

Keywords: Internet, First Amendment

JEL Classification: K00, O33, O38, Z10