From: <njh2102@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Thu, 17 Mar 2005 15:06:52 -0500

Paper 1: Municipal Wi-Fi, the Right to Listen and Voting

Paper 1: Municipal Wi-Fi, the Right to Listen and Voting

By Nikhil Hodarkar

Municipal wireless, its economic effects and its legality are hotly
debated subjects.  Its proponents, the municipalities and citizens,
point to the potential increases in local business activity and the
social good of connecting every citizen to the internet as
justification for its adoption, while its opponents, large
telecoms, point to unfair competition, potential takings violations
and inefficiency as reasons for regulating and/or eliminating it. 
Currently, it appears as though the telecoms are winning the
battle.  Anti-municipal wireless legislation is popping up all
around the country, and like the one in Pennsylvania they severely
limit municipalities’ ability to erect their own wireless networks.
 [1]  In the present legislative climate, it appears as though we
need a constitutional right or principle stemming from the citizens
in order to free up municipalities to create wireless networks as
they see fit.

One option is to assert that the constitution guarantees equal
treatment of speakers and that allowing municipal wireless to
proliferate unimpeded ensures that equal treatment.  However, given
the nature of the internet and the realities of election campaigning
it might be more appropriate to look at freedom of speech from the
other end; from the right to hear and have access to political
discourse and debate.  In some of the classic free speech cases
like Pruneyard, Marsh and Logan Valley, the situation involved a
thoroughly public place with easy access and a speaker who was
restrained from expressing himself/herself.  Discourse on the
internet, however, entails the reverse situation: completely
uncensored political speakers and a venue where there are barriers
to access.  It seems as though citizens of municipalities have just
as much right to hear those online political speakers as the
pamphleteer in Marsh had to express herself.

As the Supreme Court stated, “[f]reedom of speech presupposes a
willing speaker.  But where a speaker exists…the protection
afforded is to the communication, to its source and to its
recipients both…we acknowledge[e] a First Amendment right to
‘receive information and ideas,’ and that freedom of speech
‘necessarily protects the right to receive.”  [2]; see also [3]. 
Thus, there is clearly a foundation for the right to receive online
political speech, but without more it would be hard to overturn the
legislation being pushed by major telecoms, especially given decent
unfair competition claims.  That extra push could come from the
evolution of modern campaign tactics.

As we’ve discussed in class, politicians in ever increasing numbers
are relying on data warehouses to guide and tailor their election
campaigns/advertising to very specific groups of people across the
country.   With this method, politicians are able to direct
extremely particular, and often times misleading, messages to
individuals around the country.  The example we are all familiar
with is that of the Republican Party sending a mass mailing to
Arkansas and West Virginia claiming that if elected, the Democrats
would ban the bible and legalize gay marriage.  [4]  This seems
like a ridiculous tactic to employ, but when directed towards
cloistered individuals it can play on their fears quite well.  Who
knows how much of a difference this message made in the last
election, not just in the election of candidates but in the gay
marriage proposals as well.  Because of data mining, this type of
creative campaigning is possible.  Before, you couldn’t get away
with a message like this because you couldn’t direct it at the
people who needed to hear it.  You would have to speak to a more
diverse audience, and part of that audience would know that you
were lying.  Allowing municipal wireless to connect more and more
people is a way to diversify the audience again and take the edge
off of this type of campaigning.  With the rich political discourse
on the Net, well connected individuals will be able to check the
veracity of campaign messages like the one above.  And even if
these individuals aren’t subject to these tactics, the political
debate on the Web can only enrich them and make them more informed
voters.

Now some might say that access to television, print journalism and
radio is sufficient to guarantee access to political discourse, and
that there is no reason to allow municipalities to unfairly compete
against the telecoms.  There is some truth to the fact that tv,
newspapers and radio allow people access to political discussion,
and that almost everyone accesses all three mediums, but the
existence of alternative sources of speech does not diminish
citizens’ right to online speech.  Furthermore, when you consider
that many people only read local newspapers, watch local tv and
listen to local radio, you can see that online speech truly has
something new to offer.  It gives you easy access to viewpoints
from around the country and the world.  Online speech only enriches
the voting public, which something we should aspire to.

Now, I don’t believe that this ‘right to listen’ is remotely strong
enough to compel municipal wireless.  I think that Government
refraining from impeding that right is enough to guarantee it. 
However, I do think that this principal might be strong enough to
strike down or modify the present anti-muni wireless bills.  When
they are written like the one in Pennsylvania, which gives veto
power to Verizon, they place an undue burden on citizens gaining
access to online speech.  A telecom should not be able to halt the
efforts of a municipality to erect a wireless structure for nominal
cost.  Telecoms are motivated by profit and by a desire to maintain
a stranglehold on adjacent markets.  To allow municipal wireless
creation to be decided by these considerations would burden access
to speech, because telecoms have no interest in providing that
access.  Telecoms still have an unfair competition challenge to
municipal Wi-Fi, but there must be a balance that can be struck
between competition and rights to online speech.  I don’t know what
that balance is, but I know it isn’t allowing telecoms to dictate
who can and cannot have municipal wireless.

**

[1] Declan McCullagh, “Philly, Verizon reach accord on city Wi-Fi
plan,” CNET News.com, December 1, 2004.  Available at
http://news.com.com/Philly%2C+Verizon+reach+accord+on+city+Wi-Fi+plan/2100-7351 3-5473112.html.

[2] 425 U.S. 748, 756-757.

[3] 435 U.S. 765, 781-783.

[4] http://www.justabovesunset.com/id382.html.



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