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The First Amendment for the Digital Age:
A Case for Treating Modern Technologies Equally
by
Seth L. Cooper *
The First Amendment to the U.S. Constitution protects speakers from government censorship based on the content of their messages. But a little-noticed decision just last month by the U.S. Court of Appeals for the Fifth Circuit reminds us that the First Amendment provides other essential speech protections too. Among other things, it prohibits government from targeting a select group of speakers with discriminatory taxes and regulations.
This prohibition has important implications for speech using various modern media technologies and platforms. Disparate treatment of speakers based on the type of technology being used has been an unfortunate facet of mid-to-late 20th Century federal communications law and First Amendment jurisprudence. But a handful of recent federal court cases have begun to call into question the factual and analytical underpinnings of this pro-regulatory approach to free speech and modern technology.
Time Warner Cable v. Hudson (2012) is one such case. In it the Fifth Circuit took seriously the idea that free speech protections belong to cable video service providers, just like other speakers. Even more significantly, it made clear that the First Amendment prohibits government regulations that selectively impose burdens on certain competing video service providers, but not others. In fact, the Fifth Circuit's decision appears to be part of a growing trend in which federal courts are no longer willing to approve departures from equal application of free speech protections, regardless of the underlying technology at issue.
Time Warner Cable v. Hudson also offers a window into the future of free speech jurisprudence for modern technologies - or at least it should. In particular, the case hopefully will be a precedent that will inform a reinvigorated and principled First Amendment jurisprudence for the digital age - a jurisprudence that treats with equal respect the speech rights of all speakers using all technologies.
* Seth L. Cooper is Research Fellow of the Free State Foundation, a non-partisan Section 501(c)(3) free market-oriented think tank located in Rockville, Maryland.
A PDF of this Perspectives is here.
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