Putting internet policy back into perspective

In the early days of internet policy, many policy writers held an idealistic view of the Internet as a borderless world, independent of burdensome regulatory control that might suppress available information. Over the years, governments have chipped away at that idea, and early internet policy perspectives have adapted to suit. Looking at the regulatory proposals today aimed at controlling content, however, it is clear that there is an encroaching regulatory effort knocking on the backdoor of the online world that cannot be ignored.

On the face of these proposals, there is an apparent disconnect between the laws policymakers put forward, the goals they aim to achieve, and the limitations imposed on them by the Constitution. This cavalier approach to policymaking is not without precedent and can be found in the regulatory failings of the past that echo through today.

One continuing trend in communications regulation is the doctrine of common carriage. Legislative attempts to apply it to social media services today fail to recognize the fundamental mismatch between the old doctrine of common carriage and the robustness of the modern-day World Wide Web. Recent legislative attempts to revive the doctrine appear undeterred and unconcerned by this mismatch. Fortunately, even if common sense does not prevail, there have been decades of development in First Amendment jurisprudence to counterbalance any lasting effects.

The Internet’s place in the longstanding battle for control over intellectual thought

Few internet policy writers in the early days of the Internet saw eye-to-eye, but one thing they were all concerned about was government control over the Internet. From G.J. Mulgan, to Jack Goldsmith and Tim Wu, to Christopher Sterling, Phyllis Bernt, and Martin Weiss, control over the Internet’s information networks became paramount even to expression and equality.

There are a few different reasons why control became the focal point. From a philosophical perspective, G.J. Mulgan was convinced that control over access to information was powerful because control “is neither inherently good nor evil,” but instead a tool for liberation, destabilization, or oppression.1G.J. Mulgan, Communication and Control, Networks and the New Economies of Communication at 9 (1991). Jack Goldsmith and Tim Wu were concerned with the imposition of borders over a once-borderless world. Fundamental to all of these perspectives was that the Internet, and later the World Wide Web opened up access to information, relatively free from governmental hindrance.

Yet, long since governments realized that controlling information was key to controlling public opinion, the battle for control over intellectual space has spanned a number of communications technologies, including books, newspapers, postal services, telegraphs, telephones, radios, television, and now, the Internet. As Ithiel de Sola Pool argued in his 1983 book Technologies of Freedom, using the common carriage doctrine to justify content regulation was a frequent but troubling trend for new communications technologies.

It has been, and always seems to be, a cyclical struggle between public and private actors over control. Much like de Sola Pool predicted in 1983, the battle for control over intellectual space using common carriage continues today, extending to the Internet. What he could not have anticipated, of course, was that this battle for control would rise to the World Wide Web and social media as well.

Historically, communications technologies that faced common carriage regulations have had difficulty pushing back in court, even using First Amendment arguments we take for granted today. The problem often came down to the way policymakers framed the regulations. Instead of arguing a right to regulate speech — which is almost always suspect to strict scrutiny in the courts — legislators would argue a right to regulate communications infrastructure as a means of distributing access across a limited communications medium. That meant that Constitutional challenges were easily overcome.

Regulating broadcast media as common carriers of limited public airwaves was accepted to be merely an attempt to ensure that limited spectrum would be available and allocated on a non-discriminatory basis. But as early as 1927, regulatory solutions for allocating spectrum also included content restrictions to protect the public from transmissions that offended society. Those restrictions carried into the 1934 Federal Communications Act, and as de Sola Pool wrote in 1983, “In broadcasting, freedom of speech and of the press has been compromised. . . . Full, robust citizen participation in a democratic forum casts only a shadow on the tube.”2Ithiel de Sola Pool, Technologies of Freedom: On Free Speech in an Electronic Age at 108 (1983).

The World Wide Web, on the other hand, has managed to stave off significant attempts to compromise its infrastructure with older, content-restrictive approaches to technology regulation. The Communications Decency Act of 1996 was one of the first content-based regulations to take hold on the Internet and the Web. However, when the Act was overturned, the only thing left standing was the now-famed Section 230 that “created the Internet.

Since then, the Internet and the World Wide Web have exceeded the technical imagination of many early internet policy writers. Yet, as they foresaw through their understandings of government control over communications technology, the progress made by online companies faces a growing challenge from multiple fronts, especially social media services.

Internet regulation has always been an inevitability. As web companies mature, setting some regulatory guidelines on e-commerce may even be prudent. But access to information has been the primary principle driving the Internet, not the forced provision of modes for expression. With that added context, today’s proposals focused on compelling social media services to carry content is alarming. Notably, these efforts to regulate the online world look back to the ages-old doctrine of common carriage as the enforcement mechanism for these content regulations.

Common carriage and the First Amendment on social media

As a matter of common-sense public policy, the existing common carriage proposals are wholly inappropriate for social media sites. Over the last decade-and-a-half, in the absence of common carriage regulation, new social media sites have popped up with competing user experiences. In some cases, new social media sites have even overthrown well-established sites by offering a better user experience. If common carriage were implemented, however, competition and innovation would come to a grinding halt for three reasons:

First, common carriage applies to social media as it exists today. Common carriage does not seek to break up concentrated economic control or make way for new social media services. It seeks to regulate economic conduct under the existing market environment. Common carriage would halt innovations in user experience, which is key to the success of a new social media entrant. Restricting the ability of all social media services to innovate and enhance their user experiences would only entrench existing social media sites that can rely on their critical mass of networked users to continue existing. Without the ability to compete with a better user experience, new entrants will be unable to compete.

Second, common carriage regulation would create a static definition of what social media should be, thereby dictating what social media will be for years to come. Once the business of running a social media site is regulated through common carriage, user experience becomes fixed. In effect, this kind of regulation would deter would-be competitors from offering a different user experience — including the kind that would carry content alleged to be suppressed on dominant social media sites today.

Finally, recent content-based common carriage proposals would discourage active content moderation and render social media sites unusable. Instead of tailoring user experiences around individual preferences, users would be bombarded by a cacophony of content. The practical effect is that common carriage would drive users away from social media sites without a competitive alternative to take their place.

Even setting aside the public policy argument, today’s common carriage proposals are inappropriate for social media as a matter of law because they would violate the First Amendment prohibition against compelled speech.

In general, content-based regulation of social media services would need a compelling justification. The needed justification, so far, has only been present in extreme situations. Compelling speech without such a justification would violate the Free Exercise Clause and fundamental First Amendment prohibitions against prior restraint and compelled speech laid down by the Supreme Court in Near v. Minnesota in 1932, Red Lion Broadcasting Co. v. FCC in 1969, Miami Herald Publishing Co. v. Tarrillo in 1974, Pacific Gas & Electric Co. v. Public Utilities Commission in 1986, and even Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission in 2018, just to name a few.

The interesting flaw in today’s common carriage proposals is that their claims of scarcity on social media services center squarely on content — which was a fatal flaw of the Communications Decency Act. Yet, even with clear legal precedents, history shows that content-based regulations can take years, sometimes decades, to undo. Broadcast media, for example, was first burdened by censorial controls on controversial content in 1927. The precedent created in 1927 eventually led to compelled speech regulations in 1949, which stayed in effect until the FCC repealed the Fairness Doctrine in 1987–38 years later.

The road ahead for internet policy

With the perspective offered by early internet policy writings, it becomes clear that the first question policymakers should ask themselves before making internet policy proposals is what they aim to achieve by exerting greater control. Is it to enhance commerce online, or is it to control content? The difference between the two, in any medium of communication, is important. A hard look at online commerce is a suitable starting point for regulators seeking to enhance competition, whereas a look at speech and content will only dilute the potential of the Web. This becomes especially important when considering the Web is the only medium of public communication not yet corrupted by regulation.

Even suggesting that private control over content is a sufficient justification for commandeering control over communicative technologies drifts the discussion further into the territory of government-backed, compelled speech and censorship that first compromised broadcast media back in 1927. What is required of our regulators now is an objective insight into the failings of the past, courage to break from those ways, and conviction to face whatever troubles we may find on the uncharted road ahead.

For further reading on early internet policy perspectives:

  • Ithiel de Sola Pool, Technologies of Freedom: On Free Speech in an Electronic Age (1983) [link].
CGO scholars and fellows frequently comment on a variety of topics for the popular press. The views expressed therein are those of the authors and do not necessarily reflect the views of the Center for Growth and Opportunity or the views of Utah State University.