Free Speech Architecture: Universal Access to Speech Spaces (#7)

Cross posted from Marvin Ammori's post at Concurring Opinions.

So far I have discussed four principles concerning speech spaces (and Brett has added one). This is the fifth principle concerning speech spaces that I set out in my recent article. The First Amendment encourages access for all Americans to physical and digital speech spaces, even if the “unregulated” speech market would not provide access to many speakers. Those that benefit most from government efforts to expand universal access to speech spaces are speakers in rural areas or those without extensive means.

The traditional public forum doctrine, of course, promotes universality. Streets and parks are open to all, and they provide small, unpopular, or poorly financed speakers with an opportunity for a forum. These speakers often won’t have access to other speech spaces, like broadcast channels or newspapers. But government’s work towards achieving universal speech spaces has not been limited to public forums.
In early American history, the vast postal network allowed universal access for newspapers and other forms of communication. The U.S. had more postal roads per capita than any other nation. Nowadays, the government has adopted policies for a wide array of media to ensure universality of basic speech spaces. In the area of telephone service, carriers are legally required to subsidize low-income, rural, and non-commercial speakers, and they may do so by charging higher rates to other customers. Similarly, when the FCC hands out licenses to cell phone companies, its chief stated goal is to make cell phone service available nationwide.

With television, broadcast companies must serve all segments of a society, even less profitable ones like children (through mandated educational programs) and the disabled (through closed captioning). Cable companies are required to carry broadcast stations so that all Americans can access free, over-the-air television. And most localities require cable companies to serve the entire community.

Perhaps most critically, the federal government has taken steps to promote universal access to the most vital speech space of the 21st century, the Internet. The FCC, at Congress’s behest, is now devising a plan to promote the expansion of Internet service to all Americans.

Some of these universality regulations have been challenged on First Amendment grounds, with companies arguing that the mandatory build-out of cable or phone systems to specified customers forced the companies to “speak” to those with whom it would rather not converse. This is a “compelled speech” argument. But courts have generally rejected such arguments, usually at the district court level, suggesting that the greater goal of universality takes precedence over any arguable infringement of the speech rights of a small number of speakers.

Indeed, the recent National Broadband Plan proposed by the FCC is focused on ensuring the availability of access to high-speed Internet for all Americans (at least in principle). Ensuring access to such important speech spaces is important to guaranteeing all Americans can participate in our democracy and our culture today. This principle is suggested in the Supreme Court’s oft-quoted maxim that the First Amendment’s basic tenet is that the “widest dissemination” of information, from diverse sources, is necessary for public welfare. Government policy, and some judicial doctrine, further this goal of ensuring the widest dissemination of information.

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