Anthony E. Varona
61 Administrative Law Review 1 (2009)
Although they emerged seven decades apart, commercial broadcasting and the Internet were greeted with similar excited declarations of their potential to transform American democracy by hosting an electronic free marketplace of ideas that would inform and enlighten citizens and catalyze discussion on issues of public importance. The federal government played a central role in the initial development and proliferation of both technologies, but then assumed very different regulatory orientations to the two industries once they were commercialized. In broadcasting, the government took on an interventionist posture promoting civic republican First Amendment values by means of a variety of public interest programming requirements, justified by the public ownership and scarcity of broadcast spectrum. Technological, constitutional, regulatory and political constraints, however, conspired to render the broadcast public interest standard largely ineffective at realizing the democratic and expressive potential of the broadcast media.
In contrast to its proactive orientation towards broadcasting, the government shifted to a noninterventionist posture towards the Internet after having played a seminal role in its creation and popularization. While touting the Internet’s importance as a transformative democratic and expressive instrument, the government has preferred to rely on the commercial marketplace to optimize the Internet as a ubiquitous and vibrant platform of diverse and free democratic discussion, cultural expression, and social interaction.
The government’s deference to the commercial marketplace to realize the democratic and expressive potential of the Internet, and especially high-speed broadband, has not served the nation well. The United States continues to fall significantly behind other industrialized nations in the proliferation of broadband service that is universal, fast and inexpensive. Although expression abounds on the Internet, private censorship does too. There is very little public space online where the full complement of First Amendment protection applies, and very few local governments have interactive online presences. Whereas the Internet was hoped to bring citizens together for deliberative democratic exchange, there is much evidence that it atomizes attention, breeds civic disengagement, and fosters factionalism and polarization, while often undermining true deliberation in political discussion.
In light of these concerns, as well as the Internet’s emergence as a medium rivaling broadcasting in centrality and influence, this article argues that the federal government should adopt a much more proactive approach towards the Internet and broadband especially. It proposes that some of the principal goals valorized by the broadcast public interest standard – universal service, democratic engagement in a marketplace of ideas, diversity and localism – should serve as a template for affirmative government interventions designed to promote the Internet’s democratic and expressive potential while helping mitigate its harms. The article discusses a number of proposals to operationalize a broadband public interest standard, including direct subsidies for universal broadband service to underserved communities, support for public fora on local and state government websites as well as noncommercial locally oriented content, and a requirement for network neutrality. It concludes with a discussion of how such proposals would be consistent with the First Amendment, satisfying both the autonomy-rooted and civic republican conceptions of democracy, and avoiding the legislative, regulatory and administrative pitfalls of the broadcast public interest standard.