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13 Va. J.L. & Tech. 1 (2008)

handle is hein.journals/vjolt13 and id is 1 raw text is: VIRGINIAJOURNAL OF LAW& TECHNOLOGY WINTER 2008 UNIVERSITY OF VIRGINIA VOL. 13, No. 1 MANDATED NETWORK NEUTRALITY AND THE FIRST AMENDMENT: Lessons from Turner and a New Approach MORAN YEMINIt ABSTRACT The debate over network neutrality-one of the most hotly debated public policy issues in the United States in recent years-has been focused primarily on economic and technological aspects of Intemet governance. This article treats network neutrality primarily as a free-speech issue and comprehensively examines the First Amendment implications should neutrality rules be enacted The article explains why the current legal environment does not support a netwrk-neutrality law and questions, using an analogy to the Supreme Court's rulings in the Twer cases, the constitutionality of potential neutrality rules under existing First Amendment jurisprudence. It traces the jurisprudential difficulty in upholding neutrality rules to the traditional bilateral concept of the First Amendment, which sees any First Amendment conflict as a tw-variable equation (a speaker and the Government), making it ill-suited to deal with the multiple-speaker environment of the Internet. The article identifies the various mechanisms by which the Court has traditionally reduced the multilateral matrix of conflicting First Amendment rights into the familiar bilateral pattern, the result being the deprivation of rights of some speakers. Netwrk neutrality protects content providers' and especially users' individual free-speech rights, which stem from the First Amendment. The article calls for the adoption of both netwrk-neutrality rules and a new, multilateral concept of the First Amendment, in which the rights of all relevant variables in the constitutional matrix are assessed on equal terms. D 2008 Virginia Journal of Law & Technology Association, at http://www.vjolt.net. Use paragraph numbers for pinpoint citations. t LL.M. 2007, New York University School of Law; LL.B. 2003, Tel-Aviv University; B.A. (Communications) 2002, Tel-Aviv University. This article is based on the author's LL.M. thesis, written under the academic supervision of Professor Diane Zimmerman of New York University School of Law. The author would like to thank Professor Zimmerman for her invaluable guidance and support. The author would also like to thank Professors Ellen Goodman, Susan Crawford, and Philip Weiser for their enlightening comments on earlier drafts. Finally, the author would like to express special gratitude to Amit Schejter of Penn State University, who assisted the writing of this article from the stage of idea development and throughout.

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