How to Evaluate the Constitutional Legitimacy of Regulating Speech Intermediaries: Lessons from a Century-Long Experience of Media Regulation
Asaf Wiener*
Article

The full text of this Article may be found here.

29 Fordham Intell. Prop. Media &Ent. L.J. 803 (2019).

Article by Asaf Wiener

ABSTRACT

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his Article aims to supply policymakers and jurists with an ideologically-neutral framework for evaluating the legitimacy of imposing public interest duties on today’s dominant communicative technologies, such as Netflix, YouTube, or Facebook. In contrast to current literature, which often advocates for adopting either a libertarian or a distributive position about communication policies and free speech values, this Article suggests an ideologically-neutral, fact-based examination for evaluating the various sources of legitimacy with regard to both “old” and “new” media regulation.

The first Part of the Article begins by adopting a sociohistorical perspective to taxonomize consensual sources for legitimizing media regulation within the public interest framework. By unraveling these various rationales and justifications, it further examines the sources’ theoretical and practical applicability to contemporary debates about the constitutional permissibility of regulating internet-based content providers and platforms. The second Part suggests that, although both utilitarian-economic and egalitarian-democratic justifications for traditional media regulation can generally apply to new forms of commercial media, free speech jurisprudence lacks sufficient consensus about the conditions for the legitimacy of such regulation, as it suffers from two primary flaws: (a) lack of rationality or basis in social facts; and (b) lack of sensitivity to the hidden constitutional costs of media regulation within the public interest framework. The third Part of the Article offers a consensual framework for bridging today’s ideological divides—over media regulation and free speech jurisprudence alike—by suggesting common ground for evaluating the legitimacy of media law and policy, which both libertarian and egalitarian ends of the liberal-democratic spectrum can support.

*Research Fellow, Sacher Institute for Legislative Research and Comparative Law, Faculty of Law, The Hebrew University of Jerusalem; Adjunct Professor of Media Law and Policy, Faculty of Law, Tel Aviv University. I wish to thank Daphne Barak-Erez, Michael Birnhack, Omri Rachum-Twaig, Ohad Somech, Nadav Dagan, and Alon Jasper for their insightful comments on previous drafts of this paper. I also benefited greatly from comments and discussions while presenting this paper at the following academic forums: The 10th Annual Conference on Innovation and Communications Law (May 2018); the International Society of Public Law (ICON-S) Annual Conference ( June 2018); the Junior Scholars Workshop, Faculty of Law, The Hebrew University of Jerusalem (October 2018).