Evaluating the Constitutional Legitimacy of Regulating Speech Intermediaries: Lessons From a Century-Long Experience of Media Regulation

53 Pages Posted: 18 Jul 2018 Last revised: 1 Nov 2018

See all articles by Asaf Wiener

Asaf Wiener

Tel Aviv University, Buchmann Faculty of Law; Israel Democracy Institute

Date Written: October 15, 2018

Abstract

This Article aims to supply policymakers and jurists with an ideologically-neutral framework for evaluating the legitimacy of imposing public-interest duties on today's dominant communicative technologies, such as Netflix, YouTube or Facebook. In contrast to current literature which often advocates for adopting either a libertarian or a distributive position about communication policy and free speech values, this Article suggests an ideologically-neutral, fact-based examination rules for understanding and evaluating the various sources of legitimacy with regard to both 'old' and 'new' media regulation.

The first part of the Article begins by adopting a socio-historical perspective to taxonomize the consensual sources for legitimizing media regulation within the public interest framework. By unraveling the various rationales and justification, it further examines their theoretical and practical applicability to contemporary debates about the constitutional permissibility of regulating internet-based content providers and platforms. The second part suggests that although both utilitarian-economic and egalitarian-democratic justifications for traditional media regulation can generally apply to new forms of commercial media, free speech jurisprudence lacks sufficient consensus about the conditions for the legitimacy of such regulation; as it suffers from two primary flaws: (a) lack of rationality or basis in social facts; and (b) lack of sensitivity to the hidden constitutional costs of media regulation within the public interest framework (liberty and equality compromise diversity; liberty and diversity compromise equality; equality and diversity compromise liberty). The third part of the Article offers a consensual framework to bridges today's ideological divides – over media regulation and free speech jurisprudence alike – by suggesting common grounds for evaluating the legitimacy of media law and policy, which both libertarian and egalitarian ends of the liberal-democratic spectrum can support.

Keywords: Free Speech, Media Regulation, Judicial Review, Justice, First Amendment

Suggested Citation

Wiener, Asaf, Evaluating the Constitutional Legitimacy of Regulating Speech Intermediaries: Lessons From a Century-Long Experience of Media Regulation (October 15, 2018). Fordham Intellectual Propert & Media Law Journal (2019 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3193649 or http://dx.doi.org/10.2139/ssrn.3193649

Asaf Wiener (Contact Author)

Tel Aviv University, Buchmann Faculty of Law ( email )

Tel Aviv
Israel

HOME PAGE: http://en-law.tau.ac.il/AsafWiener

Israel Democracy Institute ( email )

4 Pinsker St.
Jerusalem
Israel

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