Wednesday, December 17, 2008

Content-based restrictions on free speech are unconstitutional, but what about delivery-based restrictions?


In the COPA case, courts at all levels have said that, given any particular paradigm of distribution, legally driven censorship based on content is unconstitutional. Within the particular delivery method, one must use the least restrictive means in filtering out content from immature or minor users. That should mean that, given the premise that the “free entry” Internet is to be used to argue a particular position about something, all points of view have an equal chance under the law.

But is the “free entry” that we have become accustomed to itself constitutionally guaranteed? First, it exists because the business models that support it have worked so far, but they could be challenged by the economic collapse and by technology that enables visitors to block advertising. Second, it has stayed around for the past dozen years partly because of built in protections for ISP’s against downstream liability (like Section 230 of the 1996 “Communications Decency Act”, a section that was kept, and later the maligned safe harbor provision of the DMCA (Digital Millennium Copyright Act). Another threat, however, comes from the asymmetry inherent in free entry, which tends to suggest that in some situations unpredictable risks can occur for others. Some examples (a very few of them tragic) have to do with cyberbullying and “reputation” issues associated recently with youthful behavior on social networking sites. That could lead some day to requirements for third party supervision, bonding, for enough revenue stream to cover risks, or various forms of mandatory insurance, that could end the opportunity for free expression as we have become accustomed to it. I’m not sure that there is any reason that it would be patently unconstitutional to “regulate” self-promotion, independent of the content. So a law requiring bonding or insurance as a condition for access to free entry would not be unconstitutional (in comparison to laws like COPA) because it would not be content-based.

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