Beyond content neutrality: understanding content-based promotion of democratic speech.

 
  I. INTRODUCTION: CONTENT-BASED LAWS THAT PROMOTE 
     FAVORED CONTENT 
 
 II. CONVENTIONAL WISDOM ON CONTENT 
 
III. DESCRIPTIVE ARGUMENT: CONTENT PROMOTION DOES NOT 
     RECEIVE HEIGHTENED SCRUTINY, AND MUST MERELY BE 
     VIEWPOINT-NEUTRAL 
     A. Doctrinal Areas Endorsing Viewpoint-Neutral Content 
        Promotion 
        1. Limited Public Fora, Subsidies, Copyright, and 
           Other Speech Exceptions 
        2. Broadcast Media Regulation: Making Sense of 
           Radio, Television, and Satellite Doctrine 
        3. Other Media Regulation: Voice Telephone and the 
           Postal-Press System 
     B. No Precedent for Strict or Intermediate Scrutiny of 
        Content Promotion 
     C. Wireline Regulation: An Unjustified Aberration 
 
 IV. NORMATIVE ARGUMENT: LAWS PROMOTING DEMOCRATIC 
     CONTENT SHOULD RECEIVE MINIMAL SCRUTINY FOR MERE 
     VIEWPOINT-NEUTRALITY 
     A. Promoting Democratic Content Furthers the First 
        Amendment's Underlying Purposes 
     B. The Political Branches Should Have a Role in 
        Promoting Democratic Content 
     C. Case Law Involving Newspapers Actually Supports This 
        Framework 
 
  V. HARD CASES 
     A. Decentralized Communications Systems Should Be 
        Favored Whatever Content They Produce 
     B. The Individual Speech "Exception" 
 
 VI. CONCLUSION: REPLACING CONTENT NEUTRALITY 

I. INTRODUCTION: CONTENT-BASED LAWS THAT PROMOTE FAVORED CONTENT

Current free speech doctrine appears to rest on a mistake. Consider two hypothetical laws affecting American speech. First, cable carriers like Comcast and Time Warner offer video-on-demand TV service, through which customers can watch thousands of TV shows and movies "on demand," not on a predetermined schedule. (1) Suppose Congress determines that video-on-demand services could inform the public about key issues during an election campaign and passes a law requiring each local cable carrier to post, on demand, a ten minute campaign video from each candidate listed on the local ballot. Under current doctrine, this law--meant to promote informed democratic decision making--would likely be subject to the strictest constitutional scrutiny as "content-based" and be struck down as unconstitutional.

Second, consider a network-neutrality requirement. Cable and phone carriers offer high-speed Internet service to consumers, (2) and traditionally did not block, degrade, or slow down certain Web sites. (3) That is, a user could access everything on the Internet, from CNN.com to the most obscure blog, without discrimination. In 2005 and 2006, phone and cable executives declared they would exercise their "editorial" control over their "pipes" and favor some Web sites while degrading or blocking others. (4) In 2008, the FCC found that Comcast blocked online technologies, including BitTorrent, that are used by software companies to compete with cable television. (5) Suppose Congress concludes that letting cable and phone companies restrict access to online content would reduce the diversity of sources and content available to Internet users, and therefore passes a "network neutrality" law enabling users to access and share all content online. (6) Many of the phone and cable companies and their defenders, including one leading constitutional scholar, argue that this law--which would condemn actions like Comcast's that employed the same censorship tools used in China (7)--would be unconstitutional for violating the free speech rights of telecommunications companies. (8) Under current doctrine, courts may agree. (9)

How can the First Amendment be understood to invalidate, or even seriously question, these laws that promote diverse political speech? Much of the problem has to do with mistaken assumptions about the cornerstone of free speech doctrine: content analysis.

Content analysis provides strict scrutiny for "content-based" laws (like the video-on-demand law) and a balancing test for "content-neutral" laws (like the network neutrality law). (10) Scholars, judges, and Justices almost uniformly assume that laws meant to promote favored content, even diverse or political content, are "content-based" and considered as problematic as those meant to suppress disfavored content. In fact, the Supreme Court has wrongly suggested that one of the "settled principles of our First Amendment jurisprudence" is to apply strict scrutiny to laws meant to promote an informed citizenry. (11) Scholars widely assume that this "settled" principle is normatively desirable, as content-based laws are seen as threats to freedom of speech. (12)

The widely shared and deeply held assumptions about content analysis are wrong. They neither reflect existing law nor conform to the First Amendment's normative goals. Government need not be "neutral" regarding speech, and can promote particular classes of content. Government often favors content that is traditionally believed necessary for an informed citizenry, such as viewpoint-diverse, political, local, and educational content, (13) which here I call "democratic content." Democratic content is widely believed to deserve vigilant protection because of its role in democratic decision making (14) and because politicians have incentives to suppress such speech. (15) According to most precedent, in fact, content-based promotion is acceptable, subject to a mere viewpoint-neutrality requirement. (16) And such promotion should be acceptable, as it serves First Amendment values of participatory democracy and individual liberty.