Webpage about First Amendment and the media

A website called "Exploring Constitutional Conflicts," which is maintained by my "home" state's (remember, I am from Missouri, even if only in spirit) Univ. of Missouri-Kansas City Law School, has a webpage titled "Levels of First Amendment Protection for Different Media". I am particularly interested in this subject because I would like to see the FCC's "fairness doctrine" applied to public blogs and other public websites by law and/or custom.

IMO, the title of the webpage, "Levels of First Amendment Protection for Different Media," is a misnomer because the freedom-of-the-press right of the media is not the only First Amendment issue here. There is also the freedom-of-speech right of those outside the media, and speaking of "exploring constitutional conflicts," which is the subject of the website, the main conflict here is the conflict between these two First Amendment rights. IMO this freedom-of-speech right can be particularly strong, as when a newspaper has defamed a political candidate and the candidate seeks publication of a rebuttal in that newspaper.

The webpage speaks of a "scarcity" rationale:

In Reno v ACLU (1997), the Court considers what level of scrutiny should apply to content regulation of the Internet. The Court decides the the (sic) medium deserves the highest level of First Amendment protection, noting that anyone and everyone can develop a website -- the scarcity rationale of Red Lion for greater regulation therefore has no application.

I disagree -- I assert that the scarcity rationale does apply to the Internet, and the rationale in regard to the Internet is that the total absence of scarcity of comment space on websites means that it is unnecessary for the website owner (e.g., a blogger) to pick and choose which comments to publish. The webpage's above statement wrongly implies that the scarcity of sites (i.e., the number of radio stations, newspapers, websites, etc.) is the only scarcity issue --there is also the question of the scarcity of comment space per site. Radio and TV broadcasting are generally the most heavily impacted media in regard to the scarcity of both sites and comment space per site (except that radio and TV broadcasting stations can distribute copies of programs -- even unaired programs). In contrast, the Internet has virtually no scarcity in availability of both sites and comment space per site. This issue of scarcity cuts both ways: in broadcasting, the scarcity of broadcasting channels raises the issue of a monopoly on viewpoints, and in blogging, the limitless abundance of comment space means that it is unnecessary for the blogger to pick and choose comments to publish. Now somebody is going to say that this "limitless abundance" argument does not apply because blogs are "private" and therefore the bloggers have the right to control their blogs' content by censoring comments that they don't agree with. However, the more popular blogs have become major de facto public forums, meaning that control over the content of comments on these blogs can have a great influence on public opinion. There is nothing in the First Amendment that says that bloggers on popular blogs are more equal than others in regard to the right to influence public opinion. Also, another reason why blogs should be open to all views is that blogs are being authoritatively cited by court opinions, scholarly journal articles, and other authorities. Court opinions should of course not cite blogs that have policies of arbitrary censorship of comments -- to me this is a no-brainer. Some of the other authorities that cite blogs are either parts of the government or are private entities that are directly or indirectly supported by tax dollars -- needless to say, people's tax money should not be used to aid and abet in any way the censorship of their opinions. That's another no-brainer.

Here are excerpts from Reno v. ACLU:

At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three judge District Court that the statute abridges "the freedom of speech" protected by the First Amendment. . . . . .

. . . . unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It provides relatively unlimited, low cost capacity for communication of all kinds. The Government estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999." This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought." 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

So Reno v. ACLU was about obscenity on the Internet. For the reasons I gave above, I assert that the Reno v. ACLU opinion's above statement about the "scarcity" issue does not apply to arbitrary censorship of non-obscene comments on blogs.

BTW, I was surprised by the statement, "we agree with the three judge District Court," because Supreme Court cases are normally appealed from appeals courts rather than district courts. However, this case was in fact directly appealed from the US District Court for the Eastern District of Penn.. I think that such direct appeals from district courts are a bad idea -- except in dire emergencies -- because IMO it is a good idea to get a second judicial opinion before the case is heard by the Supreme Court. I was also surprised that there was a three-judge panel in the district court -- district court cases are normally heard by single judges.

A longer background of Reno v. ACLU is given in the syllabus. Reno v. ACLU struck down two sections of the Communications Decency Act of 1996; another section of the act was not challenged in the suit and survives today as 47 USC §230, which I have discussed elsewhere in this blog (here and here).

Finally, I will play the devil's advocate here. What about partisan blogs that are set up to promote or advertise something, e.g., a political candidate, a commercial product, or a particular philosophy? Shouldn't those blogs be allowed to censor contrary comments? OK, so long as such blogs make it clear that their sole purpose is to promote something and they do not hypocritically pretend to be open forums. Such blogs should be required to post a prominent notice that arbitrary censorship of comments will be practiced (e.g., "This blog has a policy of censoring comments solely because the blogger disagrees with them"). And generally such blogs should not be authoritatively cited by court opinions, scholarly journal articles, etc., and if such a blog is authoritatively cited, the citation should include a warning note that the blog has a policy of arbitrary censorship of comments. We will then see how many bloggers choose to arbitrarily censor comments.

We already have laws that regulate blogs and there is no reason why we cannot have laws that regulate bloggers' comment policies. However, as I said, laws against arbitrary censorship of blog comments are not the only answer, because most victims of such censorship have neither the time nor the money to sue. There needs to be a change in the Internet culture so that such censorship is widely frowned upon -- right now we have an Internet culture that condones and even approves such arbitrary censorship. And even if we never have a law prohibiting arbitrary censorship of blog comments, merely debating whether we should have such a law will hopefully help to change the Internet culture.

Related articles in this blog:

No, Ed, it's not your blog -- blogs are not private or personal

Prof. Volokh approves of arbitrary censorship of blog comments
.