Law in Contemporary Society

Enhancing free speech with universal broadband Internet access

If you're interested in ideas like this, check out NYCInfoLaw.

-- By DanielHarris - 14 Feb 2008

"Positive rights"

A "positive right" is an entitlement to something; a "negative right," in contrast, is the freedom from a restriction. The rights enshrined in the Bill of Rights are phrased in the negative: "Congress shall make no law..." The United States has been, on the whole, apparently reluctant to recognize positive rights. The Universal Declaration of Human Rights guarantees health care, food, clothing, and housing. Many American politicians would reject the idea that government should guarantee a baseline--although in practice our welfare state does to an extent (for instance, emergency room care for the indigent).

Speech as a positive right

Speech is phrased as a negative right in the First Amendment, but it should be a positive right: the government should be required to provide the people with modern means to speak. Speech has been extended or re-interpreted before: free speech has been held to include a right to anonymous speech. Speechifying in the rare remaining public square costs nothing. As society became literate, ideally everyone would have gained access to printing presses, but they cost too much. As technology progresses, the public should have gained access to radio and television studios. Public access channels and FCC regulations pay lip service to the idea of serving the public interest, but the Internet reduces costs to the point of realizing the ideal.

Why is the Internet special?

Medium matters. In 1960, presidential candidates Kennedy and Nixon famously participated in a simulcast debate. Nixon "won" with radio listeners, but Kennedy "won" on television. As campaigning moves onto the Internet and more voters use it as their primary source of political information, someone (probably not Ron Paul, but maybe Barack Obama) will move beyond Howard Dean and ride an Internet advantage into office.

Just as media matters for the politicians, it matters for voters. In the 21st century, will you be able to speak effectively without self-publishing? The Internet is the new public square, or at least the new private-public shopping center (in which, under California law, speech is protected). The public square always had geographical restrictions, but now we have technology to overcome them. People in poorer or rural areas are being left out of the new public square and part of our culture.

Widespread broadband Internet access enhances speech

Television and radio provide content for consumption. The government has subsidized their expansion partly out of self-interest--radio, for instance, was a critical part of the civil defense planning of the mid-20th century. Government services could be provided more efficiently over the Internet, too. However, the Internet, sold as just another content delivery network, is a two-way communications network with low barriers to entry. One does not need electronics knowledge, license, and spectrum to reach a wide audience over the Internet.

If everyone has a server in the home (IPv6 can provide the addresses we need for this to happen), or even if everyone has access to free blog providers, we can give everyone a soapbox without buying 300 million printing presses. Universal reachability and addressability over an always-on connection enables myriad futuristic fantasies, economic development, and technological innovations--a policy argument--but I argue from principle that equal (or at least high baseline) access to the predominant form of speech is critical to the success of society.

Widespread Internet access enables new categories of speech. Political campaigns have so far failed to capture the advantages Kennedy took from television because they rely on the Internet to distribute existing media: text, photographs, and video. They (and the people--speech is not just for candidates) can take advantage of new categories of collaborative speech. This Wiki is one. "Mashups" of different web services combine data from different sources into new visualizations which can convey their own messages. Perhaps there is a new medium waiting to be discovered, richer than video, which we have not yet imagined.

Why the government should provide it

Networks are most useful when anyone you want to reach is on the network. This externality is disregarded by the current broadband oligopoly, which does not see the benefits of wiring parts of rural New England (or, for some time, my home in urban West Virginia). The Internet is becoming as important, if not more, than phone service, which is subsidized in rural areas by the Universal Service charge. The government does not even have to provide this access itself; I believe that Universal Service-style subsidies to the current Internet providers, as much as I dislike their business practices, would do more good than harm.

I have privacy concerns about government provision of this service, but scale and safeguards work as well here as anywhere. In a wired nation (although a wireless mesh may be the "wires"), technology will advance or gain adoption (we already have strong encryption technology) to allow anonymity and privacy. We have more to fear from existing telecommunications providers’ rent seeking than from public utility Internet access.

Why those who would oppose my idea hate America

I propose that the expansion of the Internet is a matter of national security. Countless professors earned their graduate educations using money appropriated in the name of national security, and the Internet is itself a child of ARPA. The versatility of the Internet makes it what weapons inspectors would call a mixed-use technology: a robust network which benefits the military still provides innumerable advantages for civilian uses. Consider the Interstate highway system or the Global Positioning System as examples--my fellow former gamers should also consider the joys of the railroad in Sid Meier's Civilization games. I would approach it from the other side: as the military seems to be happy with current capacity, let the positive speech right provide the initiative for expansion.

  • Having spent part of this semester giving a version of this argument in my other course over the way, I think your idea good, and viciously hard to sell. For the moment, let me offer a couple of reasons why your closing is a bad idea. (1) Positive rights are hard to develop out of national security. What one gets instead are public privileges. (2) A net built around national security will never offer anonymity, and without anonymity most other rights are not protectible in the 21st century context.



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r9 - 12 Jan 2009 - 22:58:04 - IanSullivan
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