Thursday’s lunch talk here at CITP was by my co-blogger Adam Thierer of the Progress and Freedom Foundation. Adam is a leading voice in the debate over online free speech, with a particular focus on how to protect children from harmful online material while preserving First Amendment freedoms. In his lunch talk, Adam focused on the implications of technological convergence for First Amendment law. Traditionally, we’ve had completely separate regulatory regimes and constitutional standards for different media technologies—broadcast, cable, satellite, and Internet. The courts have repeatedly struck down efforts to censor the Internet. In contrast, in cases such as FCC v. Pacifica, the Supreme Court has given Congress and the FCC free rein to censor the airwaves. Adam calls broadcasting’s second-class citizenship the “First Amendment Twilight Zone.”
Adam argues that the premise at the heart of these precedents—the idea that “broadcast,” “cable,” and “Internet” are distinct categories that can be regulated differently—is rapidly being undermined by technological progress. There are far more ways to get content than in the past, and it’s far more difficult to draw clear distinctions among them. As technologies converge, the question is whether the law will converge with it? And more importantly, if the law converges, which direction will it go? Will the Internet be subject to the more censorious standards of broadcast television? Or will Internet-based replacements for broadcast television enjoy the same robust protections as online content does today?
Adam has made a screencast of his presentation, in which he answers these questions and more. It’s a great talk and I encourage you to check it out:
