Rebecca Tushnet · June 2008
76 GEO. WASH. L. REV. 986 (2008)
At least since Alexander Meiklejohn wrote that “[w]hat is essential is not that everyone shall speak, but that everything worth saying shall be said,” First Amendment theorists have debated the implications of speaker-focused versus audience-focused theories of free speech. Jerome Barron’s classic article is, in this vein, deeply concerned with providing citizens greater access to conflicting viewpoints and nonmainstream subject matter, not because speakers with disruptive ideas have a right to be heard, but because we as a society have an interest in hearing them.
As Barron recognized, the First Amendment rights of speakers and audiences must be evaluated in the contexts of their relationshipsto larger structures. To the extent that there is a right to speak or a right to hear, who is on the other side of that right? The system of free expression is not atomized, but pervasively structured by conduits such as television broadcasters and Internet service providers (“ISPs”). Here I will focus on (potentially) harmful speech as it relates to claims for greater access to those conduits. Any effective proposal for access rights should deal with the recruitment of intermediaries to police and deter unlawful speech and the many and varied ways in which individual speakers will violate existing laws.
Part I of this Essay reviews how Barron’s arguments about the vulnerability of individual viewpoints to corporate control remain salient in a vastly changed communications environment. The default of access to the means of expression has changed, in that it is easier than ever for individual speakers to find a platform that could in theory reach millions. But choke points remain. Rather than filtering out unpopular views entirely, Internet-based media are more likely to allow all content by default, but channel attention to favored content, and then suppress specific troublesome speech once it’s brought to the attention of corporate owners. Part I.A considers how Barron’s arguments fare online. Part I.B then recounts some decisions by a popular online journaling service, LiveJournal, that illustrate the continuing importance of intermediaries, and background law, in shaping individual speech.
Part II considers more generally how intermediary liability for users’ unlawful speech does and should affect individuals’ opportunities to reach audiences. Right now, intermediary liability is a patchwork of different rules for different substantive areas. Moreover, from the perspective of access rights, intermediary liability for users’ speech is largely uncoupled from intermediary control over such speech: intermediaries possess power over individual speakers, but they have no corresponding responsibility to individuals for the use or abuse of that power.
My main concern is to show that Congress is free, within rather broad limits, to determine an appropriate intermediary liability regime. The First Amendment does not currently require a particular solution. That being said, if individuals’ speech should not be attributed to intermediaries when it is unlawful, we should at least consider ways in which intermediaries could be deterred from interfering with it when it is lawful. The current regime privileges access providers over both individual speakers and third parties harmed by those speakers’ speech. Sometimes that is a mistake, and it is not one that the First Amendment bars us from correcting. Without change, Barron’s hope for communicative diversity may not be realized, even on the Internet.
