Transmitting, Editing, and Communicating: Determining What ‘The Freedom of Speech’ Encompasses

Abstract

How much can one say with confidence about what constitutes “the freedom of speech” that Congress shall not abridge? In this Article, I address that question in the context of the transmission of speech—specifically, the regulation of Internet access known as net neutrality. This question has implications both for the future of economic regulation, as more and more activity involves the transmission of bits, and for First Amendment interpretation. As for the latter, the question is what a lawyer or judge can conclude without having to choose among competing conceptions of speech. How far can a basic legal toolkit go? Using that toolkit, I find that bare transmission is not speech under the First Amendment, and that most forms of manipulation of bits also would not qualify as speech. Adopting any of the leading conceptions of the First Amendment would narrow the range of activities covered by the First Amendment. But even without choosing among those conceptions we can reach some meaningful conclusions about the limited application of the First Amendment to Internet access providers