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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