Jack M. Balkin · June 2008
76 GEO. WASH. L. REV. 933 (2008)
I turned to Jerome Barron’s classic article on First Amendment rights of access to the press just as a story appeared in the newspapers. Many political organizations now use a technology called short message service, more colloquially called text messaging, to reach large numbers of people. If you give an organization your cell phone number and sign up for their text messaging program using a “short code,” they will send you regular text messages about subjects they think are important. The messages travel through your cell phone carrier’s system. NARAL Pro Choice America, an abortion rights group, contacted Verizon requesting permission to send its text messages to Verizon subscribers using a five digit short code, and Verizon refused, saying it violated its policy against “controversial or unsavory text messages.” Verizon said it would block messages coming from NARAL Pro Choice America. As soon as this refusal became public, Verizon backed down, arguing that its employees had misapplied its policy and that of course NARAL was welcome to send messages through its system. But Verizon reiterated its right to block any messages it thought were inappropriate.
Why could Verizon refuse NARAL? Telephone companies that provide traditional voice service are regulated as “telecommunications services” and are treated as common carriers under Title II of the Communications Act. Common carriers must provide communications services to the general public and cannot discriminate based on content or speaker. The Federal Communications Commission (“FCC”), however, has not yet held that it will treat cell phone companies’ text messaging services as common carriers, even though they use much of the same equipment.
In fact, most information services in the digital age, including the broadband services through which most people connect to the Internet, are free from the common carrier obligations of traditional phone service. One of the biggest fights in telecommunications policy today is whether such services should have any obligations of “network neutrality.” A legislative requirement of network neutrality would mean, among other things, that information carriers and conduits like Internet service providers (“ISPs”) could not block, slow down, or give preferential treatment to packets moving through their system on the basis of the content of the packets. Broadband carriers, which include telephone companies like Verizon, have argued that there is no need for network neutrality; telecommunications companies will not unreasonably discriminate against traffic because doing so is bad for business. Free markets, they argue, will guarantee freedom of speech.
The Verizon/NARAL story and the larger discussion about network neutrality are part of the modern-day debate about private power in telecommunications. We are still fighting about the role of private power in structuring opportunities for free expression. And yet the world is quite different today. The private power that concerned Barron in 1967 is not the same.
