4 YALE SYMP. L. & TECH. art. no. 6
By striking down major portions of the Communications Decency Act of 1996, the Supreme Court put policymakers on notice that free speech must be respected in the new domain of regulations concerning the Internet. Consequently, one of the most important questions facing legislative and regulatory bodies across the country is the extent to which the First Amendment confines the government’s ability to shape the media and communications infrastructure of cyberspace. On November 8, 2000, Judge Donald M. Middlebrooks of the Federal District Court for the Southern District of Florida entered this discussion in dramatic fashion. Invoking the First Amendment and a free speech tradition dating back to John Milton, Judge Middlebrooks voided a Broward County ordinance mandating “open access” on Internet-capable cable lines.
In Comcast Cablevision of Broward County, Inc. v. Broward County, Judge Middlebrooks presents an expansive view of the First Amendment and defends its salience in the Internet age. The judge correctly subjected the county ordinance to First Amendment review. However, I believe that current First Amendment doctrine permits the government a wider purview within which to pursue communications regulation than Judge Middlebrooks’ opinion allows. Specifically, I aim to show that the First Amendment presents no bar to open access regulations of the kind promulgated by Broward County. My argument does not depend on a belief in the wisdom of open access as public policy. Rather, I endeavor to demonstrate that the debate over open access should go forward on the merits, without a First Amendment bar.
