a right to free internet? on internet - suffolk university

Copyright © 2013 Journal of High Technology Law and Ivar A. Hartmann.

All Rights Reserved. ISSN 1536‐7983.

A RIGHT TO FREE INTERNET? ON INTERNET ACCESS AND SOCIAL RIGHTS

Ivar A. Hartmann*

Cite as 13 J. High Tech L. 297

* Professor at FGV Law School (Rio de Janeiro, Brazil). LL.M., Harvard Law School. LL.M., Pontifical Catholic University of Rio Grande do Sul (Porto Alegre, Brazil). DAAD (Akademischer Deutscher Austauschdienst) scholarship recipi-ent. Member of The Global Internet Governance Academic Network (GigaNet). This paper was submitted as a requirement of my LL.M. degree at Harvard Law School. I would like to especially thank Professor Yochai Benkler for his constant and thoughtful advice throughout the research and writing of this work. I would also like to thank Professor Herbert Burkert, Jane Bestor and Yana Welinder for their valuable advice on earlier drafts of this paper. Finally, I wish to thank Brianna Whitney of the JHTL's editorial team for her funda-mental work in revising the paper for publication and including many useful footnotes and references.

298 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XIII:No. 2

TABLE OF CONTENTS INTRODUCTION I. THE POSITIVE DIMENSION OF FREE SPEECH IN THE UNITED STATES

A. Positive Dimension of Free Speech in Non-Media-Related Areas B. The Access-Enhancing Regulation of Media Before The Internet C. Free Speech and Internet Access Promotion in a Democracy D. Intermediary Conclusive Remarks

II. THE JUDICIAL ENFORCEABILITY OF INTERNET ACCESS AS A SOCIAL RIGHT

A. The Positive Dimension of The Right to Internet Access and Government Affirmative Action B. On The Concept of Social Rights C. Greater Discretion awarded to Legislator D. Progressive Implementation E. Subsidiarity F. Existential Minimum G. Prohibition of Retrogression H. Protection in Connection with Equality I. Intermediary Conclusive Remarks

CONCLUSION

2013] A RIGHT TO FREE INTERNET? 299

ABSTRACT An analysis of how the positive, rather than the negative, dimen-sion of a right to internet access can be enforced by the Judiciary further evidences the extent to which the recognition of this as an autonomous right is viable and indeed required. In the United States, although the protection of free speech has led to positive state action in many situations and different me-dia, the impossibility of cost-effectively disconnecting the grant-ing of access from the editorial function created unavoidable – even if somewhat abatable – restrictions on the right of free speech of the medium owner. The internet’s original nature of a decentralized and asynchronous communication environment radically changed this context such that promoting free speech by ensuring access to the internet can be achieved without the right-constraining implications of the right of reply, access to the press or must-carry mechanisms. In jurisdictions where social rights are not enforced by constitu-tional review, the acknowledgment of a positive dimension of the right to internet access or of the right to free speech operates as a justification for restriction of other rights in order to carry out digital inclusion policies. In those constitutional orders where social rights are enforceable by courts, acknowledging a constitutional right to internet access does not automatically lead to the recognition of a subjective right or entitlement of everyone to free broadband. Because due consideration of budgetary constraints and of the progressive implementation character of the right are made, an entitlement to material provisions only arises in situations where an individ-ual cannot provide internet access for itself and lack thereof keeps such individual from leading a dignified life. Prior enact-ment of digital inclusion policies significantly lessens the legisla-tor’s discretion in choosing to reverse the realization of the right, just as discriminating disadvantaged groups by excluding them from said policies warrants stricter judicial review.


INTRODUCTION

If access to the internet is a human right, will people have a claim against their government for free internet? This is a key issue for the international human rights agenda in the beginning of the 21st century. Every time such a new human or fundamental right is argued for, that is the concern that inevitably follows. When the idea of a right to internet access is raised, governments in modern constitutional democracies are much less worried about a check on their discretion to censor speech on the internet as about the possibility that they will be forced to give away free broadband to every individual. There is a common perception that the relevance of a right is better comprehended when it is being constantly and utterly violated. Likewise, the content of human dignity is more easily conceptualized by pointing to in-stances where it is being severely abused. On what concerns a right to internet access, there are lessons to be drawn from focus-ing on the aspect of it that governments more openly reject. Am I getting ahead of myself? The notion of a right to internet access was not even put forward here, much less adequately jus-tified. Indeed, this is clearly the current stage of the discussion in policy and legal scholarship: questioning whether there should be such a thing as a human or fundamental right to internet ac-cess in a networked society.1 I believe, however, that an inquiry on the content of such right and its enforceability is a core ele-ment of this discussion. And such element has indeed been a part of the dialogue in recent times. Admittedly, there are plenty of other ways to go about explaining and justifying a right to internet access. If human rights appear historically when there is perceived need for them and the possi-bility of compliance – in other words, they start to exist once

1 See Manuel Castells, Informationalism, Networks, and the Network Society: A Theoretical Blueprint, in THE NETWORK SOCIETY: A CROSS-CULTURAL PERSPECTIVE 3 (Manuel Castells ed., 2004) (defining “[a] network society is a society whose social structure is made of networks powered by microelectronics-based in-formation and communication technologies.”)


people successfully claim them,2 then it makes perfect sense to investigate whether the internet is an important part of an indi-vidual’s life. A lot of people seem to think that it is: in 2010, near-ly four out of five adults from 26 different countries believed in-ternet access to be a fundamental right.3 The idea that internet access is a social good that calls for meaningful legal safeguard was suggested already in the late 1990’s and, more importantly, in the first World Summit on the Information Society in 2003.4 This is clearly not the home turf of lawyers, as it comprises either research in sociology, anthropology and psychology, or plain poli-tics. On the other hand, for constitutional law specialists in coun-tries where an entrenched bill of rights admits the recognition of

2 See NORBERTO BOBBIO, THE AGE OF RIGHTS 15-16 (Alan Cameron trans., Polity Press 2nd ed. 1996) (1990) (introducing the idea that human rights exist only when people start to assert them). 3See Internet Access is ‘a Fundamental Right’, BBC NEWS, Mar. 8, 2010, archived at www.webcitation.org/6EBY6dtBG (noting the popular views regarding in-ternet access as a fundamental right). 4 See Int’l Telecomm. Union [ITU], Declaration of Principles, Building the Infor-mation Society: a Global Challenge in the New Millennium, ¶¶ 4, 19, 24, Dec. 12, 2003, WSIS-03, archived at www.webcitation.org/6G7TVIOvm

Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits the Information Society offers. . . . We agree that to meet these challenges, all stakeholders should work together to: improve access to information and commu-nication infrastructure and technologies as well as to information and knowledge. . . . The ability for all to access and contribute information, ideas and knowledge is essential in an inclusive Information Society.

Id. See also ITU, Tunis Commitment, ¶¶ 9 - 10, Nov. 18, 2005, WSIS-05, archived at www.webcitation.org/6G7TzicbX:

We reaffirm our resolution in the quest to ensure that every-one can benefit from the opportunities that ICTs can offer, by recalling that governments, as well as private sector, civil so-ciety and the United Nations and other international organi-zations, should work together to: improve access to infor-mation and communication infrastructure and technologies as well as to information and knowledge. . . . We underline the importance of removing barriers to bridging the digital di-vide, particularly those that hinder the full achievement of the economic, social and cultural development of countries and the welfare of their people, in particular, in developing coun-tries.

Id.


new rights by judicial interpretation, there is plenty to be said on whether internet access would fit the requirements to be acknowledged as a constitutional right. In addition to that, a sig-nificant issue is whether a socially perceived need for internet access is not sufficiently covered by existing, traditional rights such as free speech and access to information. There’s a reason-able case to be made that article 19 of the United Nation’s Uni-versal Declaration of Human Rights would place internet access under the umbrella of freedom of expression “through any me-dia.”5 There is undoubtedly considerable room for legal arguments that internet access per se does not fit the prevailing conception of a human or constitutional right, regardless of how useful it may be to people. This is by no means a minority position and has gar-nered the support of Vinton Cerf, of all people – one of the two developers of the TCP/IP protocol on top of which the internet was built.6 Cerf rejects the possibility of a human right to inter-net access, but he sees human rights as those which are timeless and “intrinsic to us as human beings”, as opposed to civil rights.7 The fact that he concedes internet access might be a civil right just goes to show the important role to be played by lawyers in informing the debate with carefully crafted concepts of human rights, civil rights, constitutional rights, and so on. This is not the main contribution that I wish to make in this pa-per. What I want to propose is that understanding the possibili-ties and limits of protecting a certain content of the right to in-ternet access is crucial not only in evaluating the prospects of its

5 See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) (stating “(e)veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions with-out interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”). 6 See Vinton Cerf, Internet Access is Not a Human Right, NEW YORK TIMES, Jan. 4, 2012, archived at www.webcitation.org/6EBeTSPj5 (supporting the position that internet access is not a human right). 7 See id. (explaining that human rights should be characterized by their out-come and differentiating them from civil rights, which are conferred by law, and not intrinsic).


recognition as a subjective right, but also, and perhaps more im-portantly, in realizing why it must be an autonomous right and not a protection derived from the freedom of expression or ac-cess to information. The content I am referring to is the positive dimension of the right to internet access. For those who find the proposition of an internet access right to be senseless, a positive dimension that would require states to act affirmatively to guarantee internet to people is surely scan-dalous. The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, is not one of these people; in his 2011 report, he emphasized the elementary function of internet access in ena-bling free speech and access to information.8 Moreover, he spe-cifically asserted a “positive obligation” of states in making inter-net “widely available, accessible and affordable to all.”9 And so it is that countries like Finland and Estonia have indeed already taken affirmative steps to meet this positive obligation.10 This is all in line with the recognition of the inherently social aspect of digital inclusion policies in societies where human interaction is increasingly part of an “‘always connected’ presence,”11 which countenances sociability aspects that are unique to the internet.12

8 See U.N. Human Rights Council, Report of the Special Rapporteur on the Pro-motion and Protection of the Right to Freedom of Opinion and Expression, ¶ 66, U.N. Doc. A/HRC/17/27 (May 16, 2011) (highlighting the elementary function of internet access). 9 See id.

[T]he Special Rapporteur reminds all States of their positive obliga-tion to promote or to facilitate the enjoyment of the right to freedom of expression and the means necessary to exercise this right, including the Internet. Hence, States should adopt effective and concrete poli-cies and strategies – developed in consultation with individuals from all segments of society, including the private sector as well as relevant Government ministries – to make the Internet widely available, acces-sible and affordable to all.

Id. 10 See id. at ¶ 65 (noting Estonia’s 2000 legislation declaring that the Internet is a basic right and Finland’s 2009 legislation stating that every Internet con-nection must be of certain speed). 11 See Christian Licoppe & Zbigniew Smoreda, Rhythms and Ties. Toward a Pragmatics of Technologically Mediated Sociability, in COMPUTERS, PHONES, AND

THE INTERNET: DOMESTICATING INFORMATION TECHNOLOGY 296, 309 (Robert Kraut


In Finland this was achieved with the Communications Market Act 393/2003, which mandates private telecom companies to offer individuals a broadband connection.13 Such provision is com-plemented by the Decree of the Ministry of Transport and Commu-nications on the Minimum Rate of a Functional Internet Access as a Universal Service 732/2009, which established the minimum bandwidth for such connection to be 1 Mbps.14 The Estonian Public Information Act of 2000 establishes, under the rubric of “Access to Data Communication Network” that “[e]very person shall be afforded the opportunity to have free access to public in-formation through the Internet in public libraries, pursuant to the procedure provided for in the Public Libraries Act.”15 To be sure, I am not suggesting that there should not be norma-tive constraints on the extent to which governments can restrict someone’s existing internet experience. Much to the contrary, recent developments in different countries have shown that state-performed tampering with people’s ability to communicate online has a great impact.16 Furthermore, it became clear that a

et al. eds., 2006) (declaring social life in a networked-society “. . . a tightly knit and seamless tissue of interaction – a real ‘always connected’ presence. . . . [i]f the ‘always connected’ presence is most prominent in intimate ties, it is not found only where people live close to each other or see each other frequent-ly.”). 12 See Katelyn Y. A. McKenna & Gwendolyn Seidman, Considering the Interac-tions. The Effects of the Internet on Self and Society, in COMPUTERS, PHONES, AND

THE INTERNET: DOMESTICATING INFORMATION TECHNOLOGY 279, 283-84 (Robert Kraut et al. eds.,2006) (noting some aspects are strictly seen with the inter-net). 13 See Communications Market Act, § 60c (363/2011) (Fin.) (ensuring ”an ap-propriate internet connection for all users. . .”). 14 See Decree of the Ministry of Transport and Communications on the Mini-mum Rate of a Functional Internet Access as a Universal Service § 1 (732/2009) (2009) (establishing the minimum bandwidth). 15 See Public Information Act of 2000, § 33 (Est.)_(ensuring every person shall be afforded the opportunity to have free access to public information through the Internet). 16 See Carol Huang, China Mouthpiece Rejects Hacking Allegations, Feb. 5, 2013, archived at www.webcitation.org/6EDHpO9mF (stating online censorship by the Chinese government is sophisticated and widespread); see also Ryan Singel, Egypt Shut Down Its Net With a Series of Phone Calls, Jan. 28, 2011, WIRED, archived at www.webcitation.org/6EDGiWmZR (illustrating the ease


legal mechanism for protection of access to the internet as such will deter practices that the right to free speech might not.17 Dur-ing the national uprisings in the Middle East in early 2011, au-thoritarian regimes attempted – at times, successfully – to simply shut down internet access in an entire nation.18 The fact that in Egypt this was accomplished with a few phone calls19 highlights the need for institutional mechanisms that would block such a disproportionately overbroad measure – mechanisms that can be seen as required if internet access is a right, but merely encour-aged if all protection is left to a free speech clause. Also, the threat of similar abuse in this field, even by democratic governments, is illustrated by the plan to give the United States President an “internet kill switch”,20 something which has fortu-nately already been discarded.21 The draft provision was dread-ed by the media and the blogosphere, and amidst the debate that ensued the Obama Administration signaled that it actually has this prerogative now, under the Communications Act of 1934.22

with which the Egyptian government stopped internet access); see also J.Y., In-ternet Censorship in Russia: Lurk No More, Nov. 16, 2012, THE ECONOMIST, ar-chived at www.webcitation.org/6EDIRQAv2 (showing the broad discretion granted to the Russian media monitoring agency to limit internet accessibility) 17 See Somini Sengupta, U.N. Affirms Internet Freedom as a Basic Right, N.Y. TIMES, July 6, 2012, archived at www.webcitation.org/6G7fT1sS1 (stating “the same rights that people have offline must also be protected online, in particu-lar freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice”) 18 See Singel, supra note 16 (discussing attempts by Burma, Iran, and Egypt to disrupt internet access if not to entirely shut it down). 19 See Singel, supra note 16 (describing Egyptian government internet shut-

down). 20 See Declan McCullagh, Renewed Push to Give Obama an Internet "Kill Switch", CBSNEWS, Jan. 24, 2011, archived at www.webcitation.org/6EEXmQaYJ (de-scribing the President’s power over privately owned computer system that is not subject to judicial review). 21 See Paul Joseph Watson, Internet ‘Kill Switch’ Dropped From Cybersecurity Bill, INFOWARS, Feb. 15, 2012, archived at www.webcitation.org/6EEYvqYic (reporting the removal of the idea from the proposed bill). 22 See Megan Carpentier, Joe Lieberman And The Myth of The Internet Kill Switch, June 27, 2010, archived at www.webcitation.org/6EEZwGAAp, TALKING

POINTS MEMO, (noting that under the Act, the President theoretically already hadbroad power to shut off any telecommunications in the interest of national security) .


A total internet shutdown is to an internet-access right what the ability to simultaneously prevent anyone and everyone from speaking, writing and signaling is to the First Amendment protec-tion of free speech.23 One can thus see that a right to internet ac-cess and the right to free speech do not operate equally to protect the same thing to the same extent.24 Another example that makes this gap noticeable is that of three-strikes laws. The French government decided to pursue starker protection of copyright against illegal sharing of files through peer-to-peer software.25 An Internet Service Provider (ISP) mon-itors use of such applications by users and if infringing use is de-tected, a series of actions is taken to act as a disincentive to this kind of behavior.26 At some point, the ISP will cease providing connection to the repeat infringer and she will not be allowed to contract the services of a different provider.27 All fine and dandy, from the free speech perspective: the individual can still write to a newspaper and take the streets to express her concerns. The statute, referred to by the acronym HADOPI (Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet, or High authority for the diffusion of works and the protection of rights on the internet), was submitted to review by the French Constitutional Council.28 It is pertinent to point out that France

23 See Declan McCullagh, Internet 'Kill Switch' Bill Gets A Makeover, CNET, Feb. 18, 2011, archived at www.webcitation.org/6EEbvVLef (presenting the argu-ment that there is no acceptable form of an internet kill switch). 24 See id. (critizing the overly broad governmental power to interfere with in-ternet freedom). 25 See Steven Musil , French 'Three Strikes' Piracy Law Dealt Setback, CNET, June 11, 2009, archived at www.webcitation.org/6EEeNNEuG (reporting on pro-posed French bill that would have punished digital pirates by suspending in-ternet service after two warnings). 26 See id. (explaining that suspected offenders’ internet access would be sus-pended for anywhere from two months to a year and put on a blacklist for the future). 27 See id.(articulating that being blacklisted would prevent offenders from sub-scribing to another ISP), 28 See Catherine Saez, Second HADOPI Law Faces French Constitutionality Test, Oct 2, 2009, INTELLECTUAL PROPERTY WATCH, archived at www.webcitation.org/6EEfW85Kb (reporting that HADOPI was challenged on constitutionality grounds before French Constitutional Council).


has a long tradition of aversion to judicial constitutional review; something which has only began to change with a ruling in 1971.29 The French Constitutional Council is thus significantly shier than the U.S. Supreme Court when it comes to second-guessing and overruling the legislator.30 Nevertheless, that is what it felt was warranted when faced with the first version of the HADOPI statute.31 The Council stated that internet access could not be suppressed without due process, which means the Judiciary must be consulted in order to cut someone off the in-ternet and this decision therefore could not hang on the whim of a private company.32 The ruling indicated that free speech cur-rently implied access to the internet, not that internet was an au-tonomous right.33 This shows, however, that the Council did not see a restriction of freedom of expression as much as an outright violation of a right to access the web.34 Even when working with traditional rights catalogues, the way the protection is framed points to what is seen as central to the issue at hand.35 There is one last example that evidences the insufficiency of working with traditional rights alone. The government of the United States launched the “Operation in Our Sites” initiative,

29 See Nicolas Marie Kublicki, An Overview of the French Legal System From an American Perspective, 12 B.U. INT’L L.J. 57, 79 (1994) (noting France’s re-strictions on private citizens’ constitutional challenges). 30 See id. at 77 (discussing the wide gap in authority between the U.S. Supreme Court and France’s Constiutional Council). 31 See Sandrine Rambaud, Illegal File Downloads Under Hadopi 1 And 2, 15 No. 6 CYBERSPACE LAW 10 (Jul. 2010) (explaining French Constitutional Council’s reasoning that lawmakers had overstepped their authority). 32 See id. (explaining council’s finding that only judges may order the suspen-sion of internet access). 33 2009-580 DC of June 10th 2009, CONSEIL CONSTITUTIONNEL ar-chived at www.webcitation.org/6J7HkNykK , (expressing the Constitutional Council’s findings on the importance of internet access to the democratic pro-cess).

In the current state of the means of communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions, this right implies freedom to access such services.

See id. 34 See id at 4 (noting the Declaration of the Rights of Man and the Citizen of 1789 supports with the importance of the freedom to access the internet). 35 See id. (explaining that traditional rights extend to a modern context).


which takes harsh legal tools intended for combating terrorism and employs them in defending the rights of copyright owners.36 Several websites are thus being “seized” by a group of institu-tions under coordination of the Department of Homeland Securi-ty.37 Of course, presenting this as a seizure implies that it is property – not speech – that is being restricted.38 Oversight and review of such measures are naturally more deferential as a re-sult of this way of disguising the problem, and when abuse situa-tions occur, authorities will get away with it more easily.39 And so they have. The domain name for the website Dajaz1.com was confiscated by the U.S. government and held for a year without allowing the person responsible for the website even the most basic due process prerogatives – like challenging the state’s ac-tion in court.40 What the frustrating efforts to adequately present this as a due process violation of either property or free speech reveal is that the real concern and core encroachment derives from lack of due process in blocking an individual from the online environment.41 It is wholly not about property, and free speech needs to be artificially stretched to encompass this sort of situa-tion.42

36 See National Intellectual Property Rights Coordination Center, Operation In Our Sites, archived at www.webcitation.org/6EEmcsSHb (describing vision and goals of Operation In Our Sites) (last updated Feb. 6, 2013). 37 See Bill Singer, Feds Try to Stop Grinch Before He Steals Christmas,FORBES Nov. 29, 2010, archived at www.webcitation.org/6EEnMOTbP (reporting on the execution of seizure orders against online distributors of illegal goods). 38 See id. (listing various domain names that have been seized for infringe-ment). 39 See Mike Masnick, Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP, TECHDIRT, May 23, 2011, archived at www.webcitation.org/6EGAUrYKR (explaining the prohibition of prior restraint, for instance, would not apply if this were about property). 40 See Mike Masnick, Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details, TECHDIRT, Dec. 8, 2011, archived at www.webcitation.org/6EGBW7iff (detailing government’s multiple refusals to provide clear information to domain name order regarding the seizure). 41 See id. (providing example of such encroachment). 42 See Laurence Tribe, The “Stop Online Piracy Act” (SOPA) Violates The First Amendment, archived at www.webcitation.org/6EGDtR4aG (providing illustra-tive comparison). Laurence Tribe’s view on the (un)constitutionality of SOPA aptly illustrates the point I’m trying to make: the threat to free speech and in-ternet access posed by the Stop Online Piracy Act, a draft legislation intro-


There is certainly no doubt that the freedom of expression inter-est is closest in nature and kind to that of internet access than perhaps any other.43 But the axiological grounds for a right do not completely explain or preempt its legal formulation and en-forcement.44 A right to internet access has the same informing value as free speech and access to information, but its application in law aims at distinctly independent legal subjective positions45 The situations I just described shed some light into this disconti-nuity on what concerns the state’s duty to omit from action, the negative dimension of these interests or legal rights. The main point I want to make here, however, is that the inconsistency of protecting internet access merely through freedom of expression or access to information is most salient when we observe the positive dimension – what the state is required to do in order to advance such rights. And yet I have chosen to discuss this positive dimension by look-ing at the regulation of free speech and the media in the United States, a legal system characterized mainly for its laissez-faire, negative-liberty-centered interpretation of statutes and the Con-stitution. Some might argue that it is a bad (if not the very worst) place to start if one wants to make evident a positive dimension of the right to internet access, especially if the theory of constitu-tional interpretation obeyed is originalism or textualism. I am decidedly refuting the style of constitutional interpretation de-fended (but not always practiced) by, among others, Justice Scalia and aligning myself with evolutionism.46 Granted, it is still a legal

duced in Congress in late 2011, is another example of the problem discussed here. See id. 43 See Dawn Nunziato, Freedom Of Expression, Democratic Norms, And Internet Governance, 52 EMORY L.J. 187, 189 (explaining close relationship between in-ternet speech and freedom of expression). 44 See Eric Engle, Ontology, Epistempology, Axiology: Bases for a Comprehensive Theory of Law, 8 APPALACHIAN L.J. 103, 105 (suggesting axiological concerns are only one aspect of legal theory). 45 See Nunziato, supra note 43, at 278-79 (equating anonymous speech on the internet to freedom of expression generally). 46 See Ronald Dworkin, Commentary, Antonin Scalia, A MATTER OF

INTERPRETATION 122 (Amy Gutmann, ed., 1997) (defending the view that ab-stract principles in the constution must be continually reviewed out respect for what they say); See also Laurence Tribe, Commentary, Antonin Scalia, A


and political environment very hostile to the idea of social rights. But I believe that exposing just how relentless the notion of a governmental duty to affirmatively advance freedom of expres-sion was in such a setting shows that there are is a social necessi-ty for the protection of internet access’ positive dimension. The fact, on the other hand, that all efforts – theoretical and practical – to protect a positive dimension of free speech in media regula-tion had major deficiencies helps build the case for an autono-mous right to internet access. Therefore, by looking at the case of the regulation of telecommunications technologies, as well as the press and other minor fields involved in the overarching arena of freedom of expression, I aim to show that the government either felt itself compelled or was judicially mandated to actively pro-mote the dissemination of individual opinion and, at the same time, that almost all such attempts suffered from intrinsic prob-lems that critically undermined their feasibility. A right to internet access is qualitatively much different and therefore presents itself as the first real option for a legal mecha-nism that adequately addresses the state’s promotional duty vis-à-vis the well-established interest in allowing people to speak their mind and be heard. Such is the focus of the first part of this paper. The second part then provides a proposition of how an in-ternet access right might have its positive dimension enforced by courts. In order to accomplish that I turn to a doctrinal and juris-prudential development of social rights enforcement that has ex-isted for decades in several legal systems. In countries where the constitutional order comprises governmental obligations to act affirmatively, as opposed to only abstain from intervening, the principles and standards construed in the field of social rights can be used for exercising judicial review of the state’s duty to implement the positive dimension of the right to internet access.

I. THE POSITIVE DIMENSION OF FREE SPEECH IN THE UNITED STATES

MATTER OF INTERPRETATION 67-8 (Amy Gutmann, ed., 1997) (agreeing with Dworkin’s view that originalism should look at what the framers said rather than what they intended).


A. POSITIVE DIMENSION OF FREE SPEECH IN NON-MEDIA-RELATED AREAS

Much of my argument focuses on means of communication that extrapolate the face-to-face interactions or personally mediated exchanges that constituted the core protected instances of free-dom of expression in the traditional town hall meeting and pam-phleteer models of political speech envisaged by the framers of the American Constitution. But as it turns out, even when broad-casting technology or massive-scale printing structures are not involved, free speech protection does not work as it should un-less state affirmative action is part of it.47 There are at least three situations where mere abstention from acting does not fully ex-plain the role government is supposed to play when protecting free speech. The Supreme Court has demanded more from public authorities in street protests, manifestations on private property and press access to criminal judicial proceedings. These cases can be elucidated as protecting the positive dimension of free speech or they can be disregarded as aberrations that depart from the tradition of First Amendment reasoning:48 merely and exclusively state abstention from interference with the individual

47 See Ronald A. Cass, Melville B. Nimmer Symposium:Article: The Perils of Posi-tive Thinking: Constitutional Interpretation and Negative First Amendment The-ory, 34 UCLA L. REV. 1405, 1424 (1987) (stating “(n)o theory will succeed in predicting the course of judicial decisions unless it builds on the intuitions that have informed courts: that the touchstone is concern about government, a negative, reactive basis rather than an affirmative one. . .”) My approach to the interpretation of the First Amendment here denotes a belief that this provision serves certain values, as opposed to being a rule without any axiological con-tent. It seems some proponents of a more conservative view of the free speech clause in the U.S. Constitution would prefer interpretation devoid of any guid-ing value – if that is even possible. Ronald A. Cass criticizes efforts to attribute a value to the norm enshrined in the First Amendment and ends up pushing for a neutrality, negative liberty and respect for tradition. See id. See also H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 611, 615 (1958) (asserting that tradition almost always hides conservative values, which are far from neutral). 48 See Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1410 (1986) (criticizing this tradition: ”The crucial assumption in this theory is that the protection of autonomy will produce a public debate that will be, to use the talismanic phrase once again, ‘uninhibited, robust, and wide-open’”).


sphere of autonomy.49 I am obviously not arguing that this is not an element of free speech protection. Quite to the contrary, it doesn’t have to be the sole normative efficacy of the First Amendment. There are several cases where an individual or a group of people found their ability to express themselves in public streets to be threatened by hecklers or violent opposition.50 In Kunz v. New York, the police authority failed to renew a permit that would en-able Baptist minister Carl J. Kunz to share his view on religion – more specifically, his Catholic religion.51 The procedure that citi-zens had to endure to be first allowed to express themselves in public was struck down by the Supreme Court for being authori-tarian in the sense mainly that it gave the public authority (the police commissioner) too broad discretion in deciding who was and who was not allowed to speak.52 This ruling was key in First Amendment case law for this reason, but the Court also explained why the commissioner’s alleged reason to deny the permit was unconstitutional.53 Justice Vinson stated that the popular unrest caused by Kunz’s proselytizing was affirmatively dealt with by the government.54 The state, Justice Vinson explained, should employ “public remedies to protect the peace and order of the community if appellant's speeches should result in disorder or violence.”55

49 See CHARLES FRIED, SAYING WHAT THE LAW IS: THE CONSTITUTION IN THE SUPREME

COURT 79 (2004) (proposing a new method which places limits on govern-ment’s power to interfere with liberty). 50 See, e.g., Kunz v. New York, 340 U.S. 290, 290-93 (1951) (describing facts of the case). 51 See id. at 293 (describing further the facts of the case). 52 See id. at 294 (finding previous case law to support the proposition that courts should condemn statutes that give administrative officials broad pow-ers with regulating public spaces). 53 See id. at 295 (noting the the Court was “concerned with suppression – not punishment”). 54 See id. at 294 (acknowledging the Court’s historical recognition of a state’s need to prevent “serious interference with normal usage of streets and parks. . .”). 55 Id.


In other cases involving manifestations against racial segregation, the Court reprimanded police authorities for choosing to elimi-nate at the expense of protesters a risk of violence resulting from expression of opinion.56 In Edwards v. South Carolina, Justice Stewart inferred that the arrest of black students for failing to comply with police orders to dismiss a protest held at South Car-olina state house grounds was illegal.57 The police saw as indica-tive of potential violence the fact that a group of white people gathered near the protesters, but Justice Stewart said this need not lead to forcing the black students to leave, as “[p]olice protec-tion at the scene was at all times sufficient to meet any foreseea-ble possibility of disorder.”58 The Court issued similar rulings in Cox v. Louisiana,59 and Gregory v. City of Chicago.60 Cass Sunstein points to these cases involving protesters to support the recogni-tion that First Amendment protection may sometimes call for state positive action.61 But this is indeed a realization dislocated from the traditional interpretation of the free speech clause,

56 See, e.g., Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (holding against the state). 57 See id. (holding that the arrest and punishment resulting from the protest breached their rights to free speech, free assembly, and the freedom to peti-tion). 58 Id. at 232-233. 59 379 U.S. 536 (1965). Justice Goldberg’s opinion demanded affirmative po-lice action when reviewing the police’s decision to order black protesters to disperse due to the gathering of unruly white people nearby as a result of a protest. See id. at 550. The Justice indicated that the necessary choice was to protect free speech and affirmatively act to control the threat to it: “[the police] could have handled the crowd.” See id. 60 394 U.S. 111 (1969). Justice Warren decided the state should use its power to enable speech to be conveyed by protecting protesters against the angry crowd and not the other way around: “Although petitioners and the other de-monstrators continued to march in a completely lawful fashion, the onlookers became unruly as the number of bystanders increased. Chicago police, to pre-vent what they regarded as an impending civil disorder, demanded that the demonstrators, upon pain of arrest, disperse.” See id. at 111-12. 61 See Cass R. Sunstein, A New Deal for Speech, 17 HASTINGS COMM. & ENT. L.J. 137, 144-45 (1994-95) (discussing Supreme Court cases regonizing First Amendment protection may sometimes need state positive action).


which is why Sunstein proposes nothing less than a “New Deal for Speech”.62 In Marsh v. Alabama,63 the Supreme Court reversed a conviction that had been confirmed by the Alabama Court of Appeals for trespassing private property.64 The appellant, a Jehovah’s Wit-ness, was distributing religious literature on the sidewalk of the town of Chickasaw.65 The person responsible for policing the lo-cality asked her to cease her activities and, upon denial by the appellant, demanded her to leave the sidewalk.66 Because this order was not complied with either, she was arrested for tres-passing.67 The twist is that the entire town of Chickasaw was owned by a private company.68 In affirming the previous rulings, the Supreme Court would have done nothing to allow state action restricting speech.69 Government had not come in the way of freedom of expression at all.70 But the majority of the Court felt that abstaining from acting and letting a private entity limit an

62 See id. at 145 (analyzing First Amendment cases decided by the Supreme

Court). Cases of this sort reveal that the First Amendment, even as currently conceived, is no mere negative right. It has positive dimensions as well. Those positive dimensions consist of a command to government to take steps to ensure that the sys-tem of free expression is not violated by legal rules giving too much authority to private persons.

Id. 63 326 U.S. 501 (1946). 64 See id. at 509-10 (reversing the lower court’s finding of criminal trespass). 65 See id. at 503 (reciting the facts of the case). 66 See id. (continuing to recite additional pertinent facts). 67 See id. at 503-04 (describing the circumstances surrounding the arrest and subsequent criminal charge). 68 See id. at 502-03 (explaining the nature of the ownership of the property in question). 69 See Marsh, 326 U.S at 508-09 (commenting that affirming the lower court’s ruling would curtail First and Fourteenth Amendment protections). 70 See id. at 516 (Reed, J., dissenting) (arguing that the trespasser’s Constitu-tional rights were not impeded by the statute and the fact that he was tres-passing to distribute religious materials does not give him greater privilege to trespass).


individual’s speech was not all that the First Amendment re-quired.71 A similar ruling was issued in Amalgamated Food Employees Un-ion Local 590 v. Logan Valley Plaza, Inc.,72 where the Court under-stood that shopping center owners were forbidden from restrict-ing speech in mall premises.73 Just a few years later, however, this was overruled in Hudgens v. National Labor Relations Board et al..74 But the precedent set by Hudgens was that the Court did not see the First Amendment as requiring government to force private property owners into tolerating speech on their grounds.75 This does not mean that a positive dimension of free speech goes against the First Amendment; it only means that it is not a necessary unfolding of constitutional interpretation.76 This was confirmed in PruneYard Shopping Center v. Robins.77 The Cal-ifornia state constitution established that shopping center own-ers could not forbid individuals from expressing themselves in

71 See id. at 506 (describing the ways in which a private property owner makes his property open for public use the more his property rights become circum-scribed by users’ statutory and Consitutional rights). As Justice Black ex-plained:

In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State's permitting a corporation to govern a com-munity of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a State statute.

Id. at 509. 72 391 U.S. 308 (1968). 73 See id. at 313 (recognizing that peaceful picketing in places “generally open to the public” is protected by the First Amendment). 74 424 U.S. 507, 520 (1976) (rejecting the assertion from Logan Valley Plaza that “a large self-contained shopping center is the functional equivalent of a municipality”). 75 See id at 513 (noting that while the public may have some legal recourse against private citizens and corportions who attempt to abridge free speech, “no such protection or redress is provided by the Constitution itself”). 76 See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (citing precedent in support of contention that reasonable restrictions on free speech on private property open to the public do not necessarily violate freedom of speech rights). 77 Id.


their building and the Supreme Court upheld this provision.78 As Justice Rehnquist noted, the core question is whether a protest-er’s speech will be confused with that of the property owner, not whether the U.S. Constitution can be interpreted to allow gov-ernment to actively promote speech.79 In any event, it seems that in this context a positive dimension of First Amendment freedom of expression is not unthinkable.80 The notion that there is more to protecting free speech than ab-staining from legislation that curtails individuals’ ability to ex-press themselves was advanced again in Richmond Newspapers, Inc. v. Virginia.81 There was no individual wishing to convey his or her speech and being frustrated by government in such an en-deavor.82 Rather, it was people who needed to access public in-formation.83 More precisely, Richmond Newspapers wanted to cover a criminal trial that had had its proceedings closed upon agreement by the judge, the defense and the accusation.84 No one wishing to speak was being muted.85 No law was being enforced that abridged an individual’s speech and yet the Supreme Court felt that the First Amendment called on more than state omission

78 See id.at 78-79 (affirming California Supreme Court’s holding that the Cali-fornia Constitution protects “speech and petitioning” even in privately owned shopping centers). 79 See id. at 87-88 (noting that views expressed by members of public in pass-ing out pamphlets or seeking petition signatures will not likely be identified with those of owner who is free to publicly dissociate itself from their views). 80 See Fiss, supra note 48, at 1415 (discussing that such a dimension may in fact be required: “There should also be laws requiring the owners of the new public arenas—the shopping centers—to allow access for political pamphlet-eers. A commitment to rich public debate will allow, and sometimes even re-quire the state to act in these ways, however elemental and repressive they might at first seem.” ). . 81 448 U.S. 555 (1980). 82 See Richmond Newspapers, 448 U.S at 583-84 (Stevens, J., concurring) (pro-tecting media’s right to free speech as a voice of an individual in the communi-ty). 83 See id. at 576 (noting that First Amendment in one sense protects “freedom to listen”). 84 See id. at 560 (discussing Richmond Newspapers’ position for the case). 85 See id. at 576-77 (considering whether denying reporters “right of access to the courtroom” obstructs their First Amendment rights).


in the field of speech, as evidenced by the opinions of Justices Burger86 and Brennan.87 Pointing to something the state can not permit, measures the public authorities should have taken, or the government’s duty of solicitude with “conditions of meaningful information” is an atti-tude by the Court that reveals some kind of preoccupation with enabling speech as much as omitting from its curtailment.88 This notion has played a significant role in public policy and adjudica-tion in the field of telecommunications and media regulation, as I will argue next.

B. THE ACCESS-ENHANCING REGULATION OF MEDIA BEFORE THE INTERNET

1. THE REGULATION OF TELEPHONE

Between the mid 1890’s and the beginning of the 20th century, once Alexander Graham Bell’s patents on the invention of the tel-ephone expired and The American Bell Telephone Company – later bought by American Telephone and Telegraph Company, AT&T – was forced to compete with other companies, the num-ber of telephones in the United States went from one per 250 people to one per 125.89 Several years of competition between

86 See Richmond Newspapers, 448 U.S at 579 – 80 (stating “Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are im-plicit in enumerated guarantees. . . . [F]undamental rights, even though not ex-pressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined. . . . The right to attend criminal trials is implicit in the guarantees of the First Amendment . . . .”). 87 See id.at 587-88 (stating “. . . the First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government. . . . The structural model links the First Amend-ment to that process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself, but also for the indispensable conditions of meaningful communication.”). 88 See id. (noting the importance of an attentive government in creating an en-vironment that fosters meaningful communication). 89 See STUART MINOR BENJAMIN, DOUGLAS GARY LICHTMAN, HOWARD SHELANSKI &

PHILIP J. WEISER, TELECOMMUNICATIONS LAW AND POLICY 696 (2006) (explaining the increase in telephone units from 1893-94).


Bell and the smaller competitors followed, during which Bell did all it could to preserve a monopoly position.90 Because of its re-fusal to let customers from other companies use its long distance service, along with other abusive practices, Bell had an antitrust suit filed against it by the Justice Department in 1913.91 The set-tlement between government and the company, called the “Kingsbury Commitment”, was widely beneficial to Bell as it was guided – much like the government’s position in this field over the next few years – by the notion that the best option for tele-communications, as far as the overall welfare of the citizens is concerned, is not free competition but rather a closely watched monopoly.92 The driving force of this argument was the belief that it would permit more Americans to have telephone lines at a cheaper price.93 This “partnership” lasted for several decades.94 The government let Bell have all the market, and in return the company had to abide by regulations that forced it to serve what the state saw as the public interest in certain respects.95 Some of the rules im-posed were related to pricing – the company evidently had to be kept from freely increasing fees since it went on unchecked by

90 See id. (discussing the competition that entered the market after Bell’s pa-tents expired and giving rise to the inference that Bell did everything they could to preserve their monopoly). 91 See Joseph H. Weber, The Bell System Divestiture: Background, Implementa-tion, and Outcome, 61 FED. COMM. L.J. 21, 22 (2008) (illustrating the outcome of the 1913 antitrust suit). 92 See id. (establishing that the “Kingsbury Commitment” allowed AT&T to op-erate without government interference). 93 See BENJAMIN ET AL., supra note 89, at 702-03 (illustrating that one of the goals furthering monopoly franchising was making telephone service afforda-ble to all Americans). Because the law didn’t force Bell and its competitors to interconnect their services, all systems traditionally remained isolated from each other except for some few cases where the companies deemed intercon-nection agreements to be mutually beneficial. The rationale was that one com-pany interconnecting all users was better than non-interconnected users served by multiple companies. Id. 94 See BENJAMIN ET AL., supra note 89, at 703 (discussing the length of the ar-rangement). 95 See BENJAMIN ET AL., supra note 89, at 703 (noting Bell’s ability to dominate the telephone industry while arguing the monopoly was in the public interest).


competition.96 A very important part of it, however, related to universal access.97 This was achieved by forcing the company to subsidize unprofitable services like phone lines for people in ru-ral areas by building up the infrastructure in order to keep prices inexpensive for low-income citizens.98 The loss in these fronts was offset by overcharging customers for offerings like long dis-tance interstate calls.99 This kind of regulation was adopted in the Communications Act of 1934, for instance.100 Universal ser-vice has been a pillar of telecommunications regulation since al-most the very beginning.101 This balancing of subsidy coupled with overcharging is only fea-sible if a company faces little or no competition at all, but Bell’s market domination was curtailed once it was forced to relieve it-self of the local operating companies.102 This prevented it from

96 See Weber, supra note 91 at 28 (explaining process by which government attempted to regulate Bell’s prices). 97 See BENJAMIN ET AL., supra note 89, at 763 (offering a broad discussion of uni-versal access to telecommunications service). 98 See BENJAMIN ET AL., supra note 89,at 763 (explaining the policy behind sub-sidized fees for rural areas). 99 See BENJAMIN ET AL., supra note 89, at 763-64 (describing the artificial infla-tion of long-distance rates that lowered the cost of local phone service). 100 See Milton Mueller, Universal Service in Telephone History – A Reconstruc-tion, 17 TELECOMM. POL’Y 352, 355-56 (1993). Mueller argues the story of uni-versal access was much different: when first used by Theodore Vail in the 1910’s, it meant connectivity of some parts of the population through one sin-gle network or company. The notion of increasing penetration of telephone was not actually in the spirit of the 1934 Act and in fact only represented gov-ernment policy goals in the 1960’s and 1970’s, when AT&T was trying to justi-fy it’s monopoly and fend off the threat of antitrust action. Id. “[R]evenue set-tlements and cost separations were not originally conceived as a mechanism for subsidizing some users or regions at the expense of others. Nor were they part of an explicitly formulated law or policy mandating universal service. They were a set of practices that evolved gradually from the regulated monop-oly framework. Not until the late 1960s and early 1970s is there evidence that regulators began to consciously manipulate the separations and settlements process in order to subsidize residential rates.” Id. 101 See BENJAMIN ET AL., supra note 89, at 763-64 (looking at the ease of imple-menting universal service when Bell ran a unified phone system). 102 See United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 165 (D.D.C. 1982), aff’d, 460 U.S. 1001 (1983) (concluding the loosening of AT&T’s control over regional Operating Companies through divestitutre is required by Federal An-


balancing its fees in a way that would benefit low-income or rural families.103 While divestiture in 1984 placed a limit on the viabil-ity of universal service policies, especially as the FCC and Con-gress have moved away from behavioral regulation, this policy officially remains a cornerstone of telecommunications regula-tion.104 The Telecommunications Act of 1996 establishes in its section 254 the principles of universal service.105 Section 254 (b)(3) reads: ACCESS IN RURAL AND HIGH COST AREAS- Consumers in all re-gions of the Nation, including low-income consumers and those in rural, insular, and high cost areas, should have access to tele-communications and information services, including interex-change services and advanced telecommunications and infor-mation services, that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar ser-vices in urban areas.106 The transition from the 1934 to the 1996 Act carried with it a de-crease in the discretion available to the FCC in advancing policy and a change in the way universal access is funded.107 A contri-bution is charged to telecommunication companies operating in-terstate and international services.108 Newcomers to the busi-ness are generally exempted from contribution, but this may

titrust laws). Judge Harold Greene explained that “the ability of AT&T to en-gage in anticompetitive conduct stems largely from its control of the local Op-erating Companies. Absent such control, AT&T will not have the ability to dis-advantage competitors in the interexchange and equipment markets.” Id. 103 See id. at 194 (discussing the disparity of telephone availability between “low income and well-off citizens.). 104 See BENJAMIN ET AL., supra note 89, at 768-69 (dictating the continued use of universial service after divesture). 105 See Telecommunications Act of 1996, 47 U.S.C. § 254 (2006) (providing universal service principles). 106 Id. at (b)(3). 107 See id. at (a)-(b) (allocating specific and limited methods available to FCC under 1996 Act). 108 See id. at (d) (mandating telecommunication companies providing inter-state services contribute to Commission efforts “to preserve and advance uni-versal service.”).


complicate the market as they grow while incumbents are bur-dened by the universal access contribution.109 Universal service has played a role in other elements of govern-mental oversight. Often, when the Federal Communications Commission oversees mergers and acquisitions of telecommuni-cations companies, or when conditions are imposed on such companies as a result of deals or victories in antitrust suits, uni-versal access-oriented requirements are embedded into the sys-tem.110 The jurisdiction given to the FCC by §§214(a) and 310(d) of the Communications Act – an authority to evaluate whether transactions are in the public interest – allows it to require in-vestments by companies in order to better serve people in rural areas, for example.111 What is the reason for incorporating universal access as a policy? It is one thing to seek efficiency and price drops overall, making telephone calls cheaper and better for every person, regardless of who they are or what they earn.112 It is something different to posit that poorer people and individuals living in rural and oth-erwise isolated areas deserve special attention so that their ac-cessibility of telephone services is not impaired.113 But why would the U.S. government pursue special mechanisms for guar-

109 See ED LENERT ET AL., The Digital Divide: The National Debate and Federal- and State-level Programs, in INEQUITY IN THE TECHNOPOLIS. RACE, CLASS, GENDER, AND THE DIGITAL DIVIDE IN AUSTIN 118-120 (Joseph Straubhaar et al. eds., 2012) (noting the fund was collecting $5 billion per year until 2002, as a result of the 6.9% differentiated tax). 110 See Federal Communications Commission. FCC Approves Merger of AT&T Inc. and Bellsouth Corporation, 1, DEC. 29, 2006, archived at www.webcitation.org/6EYLb9VxG (illustrating an example of a requirement that all residential living units in a given area). 111 See FCC Approves Merger of AT&T Inc. and Bellsouth Corporation, supra note 110 (quoting the FCC news release “at least 30 percent of the incremental de-ployment after the Merger Closing Date necessary to achieve the Wireline Buildout Area commitment will be to rural areas or low-income living units.”). 112 See Mueller, supra note 100, at 353 (discussing the importance of subsidiz-ing telephone service). 113 See Mueller, supra note 100, at 353 (explaining the modern construction of universal telephone services requires every member of society to have access).


anteeing that telephone is especially accessible?114 When it does the same thing on what purports to healthcare, one would as-sume the value of protecting people’s lives lies in the foreground. But what moves the state to actively promote universal service? Given that the only communicational right protected by the Unit-ed States Constitution is free speech, it does not seem so far fetched to argue that this is the core value of universal service in American telecommunications.115 To illustrate the relevance of the telephone in enabling freedom of expression, one need only point to the most obvious example of using telephone calls for political speech: candidate calls to voters is an elementary aspect of political campaigns.116 The regulation of telecommunications has as a background value the acknowledgment of the need to al-low citizens to actively participate in their self-government.117 Government has, while occupying itself with regulating telephone services, actively sought to increase people’s ability to express themselves but these efforts can only make a partial positive im-pact in free speech promotion due to the characteristics of the technology involved. This scenario has repeated itself with broadcasting and the press.

2. THE REGULATION OF THE PRESS Of the free speech arenas covered in this analysis, press is the one that has received the most stringent First Amendment protection from courts. The prevailing, traditional notion is that the press plays a fundamental role in a democratic society by acting as so-ciety’s watchdog on government.118 Consequently, any regula-

114 See Mueller, supra note 100, at 353 (discussing the idea that “[u]biquitous telephone access in this sense is an expression of liberal egalitarianism, like universal schooling, literacy or voting rights.”).. 115 See STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC

CONSTITUTION 46, 46 (2006) (stating free speech is the only communication right protected by the U.S. Constitution). 116 See BREYER, supranote 115, at 46 (illustrating that the modern campaign process relies heavily on telephone communication). 117 See BREYER, supra note 115 at 46 (arguing Justice Breyer’s theory of active liberties). 118 See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988) (discussing the importance of individuals being able to vet political candidates).


tion endeavored by government of the activities of newspapers is plain taboo.119 Though the origins of this notion are attributed to the Founding Fathers, much of this current status was delineated by 20th century Supreme Court rulings that created a sphere of liberty to news editors which is unrivalled, in terms of free speech, by that of any other social institution.120 The ruling in New York Times Co. v. Sullivan, immensely con-strained the possibilities for newspaper liability originating from libelous and defamatory speech against public figures.121 A press entity can convey false accusations about politicians, pubic offi-cials and celebrities without risk of being sued.122 Unless such false claims are expressed with “actual malice,” no liability is trig-gered.123 Speech that might be otherwise considered obscene is also protected when coming from a press actor if the aim is polit-ical critique, according to the ruling in Hustler Magazine, Inc. v. Falwell,.124 These decisions, along with many others, drew a very strong line at which government was forced to halt when dealing with the press.125

119 See id. (explaining that because of the wide discretion the First Amendmet affords citizens when speaking their mind, veheminent speech is inevitable). 120 See id. (providing an example of a case where the Supreme Court deter-mined that offensive speech is not a sufficient justification for suppressing that speech). 121 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 283 (1964) (holding the State’s power to award damages for libel in actions brought by public officials against critics of their official conduct is limited by the Constitution). 122 See Hustler Magazine, Inc., 485 U.S. at 52 (articulating public figures can be criticized by the press without the right to retaliate). 123 See id. (noting to bring a claim public figures need to prove the statement was false and was made with requisite level of culpability). 124 See Hustler Magazine, Inc., 485 U.S. at 55,56 (laying out the holding). 125 See Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983). (holding that differential taxation of the press is uncon-stitutional because the goal of the regulation is related to suppression of ex-pression). Indeed it seems that one understanding of the relationship between the state and newspapers would call for something similar to the Establish-ment Clause. See id. It’s not only about omitting from restrictive legislation, it’s about staying away from it, no matter what the purpose is of regulation that affects the press. See id. Upon review of a law from the state of Minnesota that created a tax exemption that favored some of the newspapers, a majority of the Justices felt that the press couldn’t be “singled out” in any way, even if it


This wall of separation between the state and the press was not always in place, of course. For many decades in the early days of the nation, the subsidy provided by the United States Postal Of-fice to the delivery of newspapers was decisive to their mainte-nance and economic viability, allowing the press to reach peo-ple’s homes. Naturally, the pursued goal was to enable a public sphere for debate of political issues in a country of continental dimensions. Supporting the premier medium of political infor-mation exchange was seen as compatible with – if not implicitly required by – the Constitution. This scheme reflects neither a wall of separation, nor a view that the First Amendment operates exclusively as a negative liberty. A regulation of the press that is harmonious with a minimalist reading of the Constitution’s free speech guarantee is unable to explain the initiative of the state of Florida in creating a right of reply in the press for people who have been attacked in a news story.126 Such right was struck down by the Supreme Court in Miami Herald Publishing Co. v. Tornillo.127 Even if the issue is framed as an inquiry into whether the Constitution allows a right of reply provision, as opposed to a question of to what extent it requires such legal mechanism,128 my point here is not lost. Just because the Supreme Court does not feel that the Constitution requires a certain legal protection, it does not render moot the fact that policy makers and legislators opt to demand it. What the adoption of the right of reply by Florida really means is that there is a notion in American political culture that something has to be

was in order to grant it a legal benefit. See id. The idea was that special pref-erential treatment could very easily be followed by special burdensome treat-ment. See id. 126 See Miami Herald Publ’g Co. v. Tornillo, 418 U.S 241, 258 (1974) (ruling the “right of reply” statute as unconstitutional). 127 See id. at 244 (discussing the Tornill’s request his response to a critique be published by the newpaper). 128 See Stepehn Gardbaum, A Reply to The Right of Reply, 76 GEO. WASH. L. REV. 1065, 1067 (2008) (articulating by allowing individual the right to reply, the press’s constitutional right to free speech will be limited).


affirmatively done in order for the conditions to exist which allow people to freely and effectively express themselves.129 The landmark ruling in West Virginia State Board of Educ. v. Barnette, which considered compelled speech in the school envi-ronment,130 is key in allowing a distinction between compelling speech and compelling access to the speech of others.131 If what the Florida statute purported was to change the Herald’s ex-pressed views, then Barnette would be controlling and the main part of Justice Burger’s opinion could be indicated as this: “A re-sponsible press is an undoubtedly desirable goal, but press re-sponsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”132 In Barnette, the goal of the school’s policy was to get children to slowly and gradually agree with the importance of saluting the flag and full-heartedly believe in the pledge.133 But the Florida statute did not aim at changing the views of the Miami Herald editors.134 It was about a change in the allocation of space in the medium, not about an in-culcation of beliefs.135 The legislator was not trying to turn the newspaper into a responsible actor; it was forcing it to perform a

129 See Tornillo 418 U.S. at 245-46 (noting the Florida Supreme Court inter-preted the right of reply statute as a means to broaden communitations in so-ciety). 130 See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 626 (1943) (finding the statute requiring children to salute the United States flag during the pledge of allegiance violated the First Amendment). 131 Compare Barnette, 319 U.S.at 633-34 (refusing to participate in the pledge of allegience is an individual act against the ceremonial aspect so it is protect-ed by the First Amendment) with Tornillo 418 U.S. at 261-62 (recognizing a critique by the press is protected by the First Amendment even though it is not an individual act). 132 Tornillo, 418 U.S. at 256. 133 See Barnette, 319 U.S.at 625-26, 631 (noting the school’s policy did not al-low children an alternative to saying the pledge of allegiance forcing them to choose between participating in the ceremony or face consequences). 134 See Tornillo 418 U.S. at 256-57 (interpreting the statute broadly, allowing editors to print truthful critiques without forcing them to print replies). 135 Compare Barnette, 319 U.S.at 634 (focusing on how forcing the beliefs and ceremony on the children impedes their First Amendment rights) with Tornillo 418 U.S. at 256-57 (highlighting the Editor’s rights will be impeded on if they are forced to publish every response).


responsible allocation of space in the communication vehicle.136 So much so, that if a newspaper was forced to print several re-plies every single day its readers would not see it as more re-sponsible.137 Much to the contrary! Some proponents of the affirmative dimension of the First Amendment see a role for proactive regulation in broadcasting, due to the scarcity of spectrum and the resulting regulation, but not in the press, where the scarcity is one of financial re-sources.138 My point is that the notion of a need to promote speech was there, but the technical conditions of the medium (printed press) made a legally appropriate mechanism impossi-ble to achieve. So the portion of the majority opinion in Tornillo that is central to the ruling is actually the one that follows the analysis of the “access to the media” arguments,139 as developed by the famous article by Jerome Barron.140

136 See Tornillo 418 U.S. at 256-57 (indicating the statute was trying to control how the Miami Herald allocated space in its newspaper) 137 See id. at 257 (discussing the economic reality that a newspaper can not print unlimited replies). 138 See Thomas I. Emerson, The Affirmative Side of the First Amendment, 15 GA. L. REV. 795, 823 (1981) (stating “any attempt to eliminate all differences based on economic factors would involve governmental regulation and governmen-tal domination on a scale that would destroy the system.”). 139 See Tornillo, 418 U.S. at 254, 258.

However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either govern-mental or consensual. If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years. . . . the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. . . . It has yet to be demonstrated how governmental regulation of this cru-cial process can be exercised consistent with First Amendment guar-antees of a free press as they have evolved to this time.

Id. 140 See Jerome A. Barron, Access to the Press - A New First Amendment Right, 80 HARV. L. REV. 1641, 1658 (1967) (offering theory of First Amendment analysis). Even if we somehow proved that the right of reply model struck down by the Court would not lead to press self-censorship, it is not necessarily conducive to the goal that animates it. Barron himself wisely pointed out that access to the media is about overcoming a situation where minority groups, unpopular


The main reason why the mechanism under question was inade-quate is that, in the majority’s opinion, it led to self-censorship.141 The right of reply was not permanent – only issuing a critique to a candidate activated the right.142 Therefore, so goes the reason-ing, the newspapers would refrain from criticizing in the first place.143 There is solid proof that what the Court had a problem with was the way this specific legal instrument operated and not the notion of promoting speech.144 A couple of decades later, when deciding a cable regulation case where compelled access was again under scrutiny, the Court accepted the mechanism at hand there and expressly made this distinction with the Tornillo precedent.145 I will get to this case later. It appears that when the press is concerned, there is sympathy from government and the Supreme Court to the notion of affirm-atively promoting free speech.146 The tradition of deriving noth-ing but negative liberty from the First Amendment is just that – a tradition.147 It is not the only rational interpretation that de-serves any merit.148 Law is admittedly about tradition and integ-rity in interpreting precedents, but that is certainly not the entire picture: distinguishing and making the Constitution and statutes

views and underprivileged associations are ignored because they do not have a visible podium. If the media continuously ignores them, this kind of mecha-nism will not solve their problem. Id. at 1660. 141 See Tornillo, 418 U.S. at 258 (holding that the Florida statute intruded into the duties of editors). 142 See id. at 244 (discussing nature of right of reply). 143 See Tornillo, 418 U.S. at 260 (White, J., concurring) (noting that the First Amendment has never been interpreted to permit the government to dictate content to the press). 144 See id. at 261 (finding that the statute amounts to impermissible govern-ment compulsion of editorial decisions). 145 See Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 520 U.S. 180, 208 (1997) (holding that a “must carry” requirement on cable networks passed constitutional muster). 146 See Tornillo, 418 U.S. at 260 (discussing the importance of the First Amendment). 147 See Marvin Ammori, Negative Liberty and What the First Amendment Ought to Be, Feb. 3, 2012, archived atwww.webcitation.org/6EbXIV8A6 (rejecting traditional theory that the First Amendment is a form of negative liberty). 148 See id. (offering alternative interpretation to the negative liberty model).


adapt to changing social contexts is also a major component of le-gal interpretation.149 The problem is again, however, that the technical characteristics of the printed medium make it almost impossible to create a legal mechanism that would give effect to the positive dimension of free speech in a constitutionally appropriate way.150 Of course, that was not a problem with the telephone: the companies were common carriers because they were not gatekeepers – there was not any scarcity for them to solve by applying editorial power.151 Once the costs of a communication medium are high, as is the case with the press, only a few will be able to bear them, inevita-bly leading to the incorporation of a gatekeeper regime.152 A me-dium that did not suffer from either flaw – incapacity to reach wide audiences and scarcity of space – would lend itself to regu-lation much more easily.153 The core difficulty in implementing a right to access to the press is that putting the person’s speech into the medium is one and the same with the choice of how much space will be reserved for the message, what allocation hierarchy it will deserve, when it will be published and so forth. If a medium of communication al-

149 See RONALD DWORKIN, LAW’S EMPIRE 413 (1986) (offering this valuable les-son). 150 See id. at 4-5 (discussing out disagreements about the law, and language used to frame such arguments, confuses the issues at hand). 151 See JEROME BARRON, FREEDOM OF THE PRESS FOR WHOM?: RIGHT OF

ACCESS TO MASS MEDIA 325 (1975) (arguing that because radio compa-nies are considered common carriers, they do not face the same issues with free speech as new papers).

No one thinks that the Board of Directors of AT&T approves of every conversation thatgoes along its telephone lines. The daily newspaper could never be treated as a common carrier to the same extent as the phone company, but community dependence on the daily press gives it something of a common carrier role, alt-hough the press has no reciprocal responsibilities to its reader-ship.

See id. 152 See id. at 325-26 (discussing the prohibitive costs of starting a daily news-paper). 153 See id. at 326 (citing the generally accepted idea that there is an inequality “in the ability to communicate ideas.”)


lows the operation whereby someone is admitted into the plat-form to be disassociated from the editorial decisions on the con-tent of speech itself, then its regulation informed by the positive dimension of free speech would become viable.

3. THE REGULATION OF RADIO BROADCASTING Commercial use of radio as we know today barely existed when the Radio Act was passed in 1912 because receivers still weren’t cheap enough to become mainstream.154 But as the Act favored commercial over amateur use (keeping government use by the military and the Navy an overall first priority), the legislature set the backdrop against which political speech would be later re-stricted in order to secure more airtime for advertising.155 Over the next few years, Herbert Hoover, then Secretary of Commerce, privileged commercial broadcasters with moves such as allocat-ing the worst wavelengths to amateurs and the better ones to commercial players,156 but the 1920’s were still a time when non-profit radio was seen as the primary use of airwaves and thus commercial stations went so far as asserting an aura of public in-terest to their services.157 The Radio Act of 1927 established that spectrum belonged to the government and would be licensed for three-year periods.158 The choice on how the licensing process would occur reveals a desire

154 See Gregory M. Prindle, Note, No Competition: How Radio Consolidation has Diminished Diversity and Sacraficed Localism, 14 FORDHAM INTELL. PROP. MEDIA &

ENT. L.J. 279, 284 (2003) (discussing early history of radio prior to enactment of Radio Act of 1912). 155 See BENJAMIN ET AL., supra note 89, at 18 (discussing the reasoning behind the passage of the Radio Act of 1912)/ 156See BENJAMIN ET AL., supra note 89 at 18 (highlighting the way in which the Radio Act of 1912 fostered wider use of newly emerging technology by creat-ing a separate grouping called “broadcasting” to satisfy the needs of the thou-sands of Americans purchasing receiving sets). 157See Robert W. McChesney, The Debate Over Public Policy and the Emergence of Commercial Broadcasting in the United States, 1927-1935, 21 BUS. & ECON. HIST. 171, 172 (1992) (providing examples of broadcasting companies that presented themselves as public service corporations). 158See Nat’l Broad. Co. v. U.S, 319 U.S. 190, 201 (1943) (discussing the three-year licensing period).


of Congress to use this public resource to promote free speech.159 A system for granting licenses based on auctions was vetoed ex-actly because lawmakers wanted radio to be free.160 Moreover, while a lottery scheme would also have made radio free, it was rejected because licensees should continue to provide a public service.161 The criteria set thus were “public interest, conven-ience, or necessity.”162 In less than ten years, the work of the Commission established by the Act (which later became the Federal Communications Com-mission) in conjunction with two commercial stations caused non-profit radio to decline to a meager two percent of broadcast time in the United States.163 This was accomplished by requiring licensees to decrease their airtime so that they could share spec-trum and also by conditioning licenses to the use of complex, ex-pensive equipment which non-profit stations couldn’t afford.164 They gradually lost airtime and, consequently, revenues.165 This made them less and less able to maintain the required technical structure and caused their demise.166

159 See McChesney, supra note 157, at 173 (remarking the only directive given to the FRC was to give preference to station applicants that “best served the ‘public interest’”). 160 See David A. Moss & Michael R. Fein, Radio Regulation Revisited: Coase, the FCC, and the Public Interest, 15 J. POL’Y HIST. 389, 390 (2003) (commenting up-on Congress’ preference for preventing a concentration of licenses in the hands of the few). 161 See Moss, supra note 160, at 390 (asserting belief that law makers acted with the intent of protecting the public interest when vetoing the auction of radio licenses under the Act). 162 McChesney, supra note 157. 163See McChesney, supra note 157at 174 (explaining how non-profit stations accounted for only two percent of the total United States broadcast time by 1934). 164See McChesney, supra note 157at 174 (commenting on how non-profit broadcasters’ lack of financial and technological prowess made it difficult for them to generate the funds to be successful). 165See McChesney, supra note 157at 174(detailing the way in which non-profit broadcasters’ hours and power were decreased to the advantage of well-capitalized private broadcasters). 166See McChesney, supra note 157at 174 (asserting that the lack of funds and know-how of non-profit broadcasters in the 1920s and 1930s eventually caused their downfall).


The public interest standard was slowly being twisted in its in-terpretation. Where once it meant public service radio, by the mid 1930’s it had been transformed into a requirement of offer-ing programing that would please the average individual.167 This was of course the main objective of profit-seeking stations: to present content that would be palatable to the largest possible amount of people so that advertising revenue would be higher.168 It was the rise of the dreaded lowest-common-denominator-programming.169 The Commission at this point disfavored politi-cally-oriented radio stations because they could not provide such bland speech and had therefore to leave the airwaves.170 It’s convenient to note that Congress, who just a few years earlier had made decisions that would privilege a radio environment less dominated by commercial stations (while trying to enable the conditions for many people to broadcast diverse views) now did nothing to change the FCC’s course of action.171 This was not caused by a change in the representatives’ interpretation of what the First Amendment meant.172 The reason is that politicians

167 See McChesney, supra note 157at 175-76, 179 (listing the three themes the boardcasting reform movement hoped to achieve as well as trying to capture its audience with democratic values). 168 See McChesney, supra note 157at 174 (determining what would generate the most profit). 169 See McChesney, supra note 157at 173 (describing how a few broad reach-ing networks ended up with a majority of the radio spectrum). 170 See Ellen P. Goodman, Media Policy Out of the Box: Content Abundance, At-tention Scarcity, and the Failures of Digital Markets, 19 BERKELEY TECH. L.J. 1405, 1450 (2004) (discussing the effect of most media companies being absorbed by large public corporations). This phenomenon of lowest-common denomi-nator programming that is dull and levels cultural and political diversity has remained a core vice of mass media throughout the 20th century. That’s be-cause “[t]he the corporate culture of most large media conglomerates tends to reinforce risk aversion and homogeneity in media products.” See id. 171 See Nat’l Broad. Co., 319 U.S. at 216-18 (discussing the public interest to be served by the Communications Act of 1934 towards making the fullest and most effective use of limited radio channels). 172 See PAUL STARR, THE CREATION OF THE MEDIA: POLITICAL ORIGINS OF MODERN

COMMUNICATION 371-374 (2005) (examining why politicians did nothing to change the FCC’s course of action because they realized how vital radio was when it came to winning elections).


learned how much they now depended on broadcasters to win elections.173 Regardless of what type of speech the Commission chose to favor during this time, the real problem is that this period marked the incursion of government into the foray of evaluating the merit of people’s speech.174 The Fairness Doctrine was thus established as a standard whereby the FCC would evaluate the advantages of granting a license renewal to a broadcasting company.175

173 See id. (explaining how radio become a popular medium for politicians to gain notoriety, to the point that they depended on broadcasters to win elec-tions). This close relationship started developing after both parties, the Dem-ocrats and the Republicans, weren’t able to pay off their broadcasting bills af-ter the 1928 and 1932 elections. See id. The need to buy airtime for their campaigns turned politicians into hostages. Radios were generous, realizing they needed the people in Washington to be their allies lest they would find themselves being forced to provide airtime by law as opposed to selling it. See id. Broadcasters were legally bound to provide equal opportunities in radio during elections, but otherwise they favored the dominant parties, especially that currently in power. See id. The press failed its watchdog mission at that time because it was also in cahoots with radio. See STARR, supra note 172, at 373. In the early 1930’s, when news in the radio wasn’t yet developed, the printed press and radio broadcasters struck a deal to ensure the monopoly of the former in the news business. See STARR, supra note 172, at 377. The condi-tions for such agreement existed due to the fear nurtured by the broadcasters that the press would give voice to supporters of public radio – the 1934 Tele-communications Act was being drafted. See STARR, supra note 172, at 377. Af-ter it was enacted, however, broadcasters went into the news business and ra-dio came of age. See STARR, supra note 172, at 377. 174 See STARR, supra note 172, at 372 (explaining that a distinction between speech that was news and scheep that was advertising should be drawn). 175 See STARR, supra note 172, at 371 (expressing Congress’s desire to give op-posing political campaigns equal opportunity in the media). The application of the doctrine had some initial problems such as lack of transparency. See STARR, supra note 172, at 371. For many decades a request for renewal couldn’t even be challenged by anyone who didn’t have interest – and financial resources – to take the licensee’s place. See STARR, supra note 172, at 371. This unfortunately blocked civil society from exerting any influence in the de-cision of who uses the airwaves until court rulings forced the FCC to allow community members to challenge a renewal request and to hold a public hear-ing before permitting a transfer of license that would cause the format of the programming to change. See Benjamin, supra note 89, at 121.


The liberalist approach to the FCC’s role in radio regulation, as well as the absolute negative liberty explanation of the First Amendment, fail to explain the Fairness Doctrine.176 Not all of the values put forward by Congress in the 1927 Radio Act were lost.177 The Fairness Doctrine pushed back on negative liberty and required the FCC to actively impose on broadcasters an obli-gation to include in their programming the debate of public is-sues and a fair coverage of all sides to such issues.178 In the early 1940’s the FCC had already pressured radio stations demanding more diverse programming.179 Later, in 1967, it codified the Fairness Doctrine, which was quickly brought to the Supreme Court for review.180 After author Fred J. Cook felt attacked by a program aired on Pennsylvania radio station WGCB, owned by The Red Lion Broadcasting Company, the FCC agreed that reply time was due.181 The Commission’s decision was upheld by the Court of Appeals for the D.C. Circuit, but at the same time the new

176 See STARR, supra note 172, at 380 (expressing support for equal opportunity principles in the media by encouringing diversity of voices but never expressely discussing the fairness doctrine). 177 See STARR, supra note 172, at 380 (describing the FCC’s position promoting diversity of voices in broadcasting stations, which was in accordance with the early Congressional idea of equal opportunity in media). 178See STARR, supra note 172, at 380 (outlining requirments imposed on broad-cast management under the Fairness Doctrine). 179 See STARR, supra note 172, at 380-81 (addressing efforts to promote diversi-ty on the air).

The effort by federal regulators to assure a diversity of voices on the air was also evident in an unprecedented series of FCC measures aimed at opening network radio to greater competition. . . . In 1941, culminating a three-year investigation into “chain broadcasting,” the FCC concluded that the control exerted by the networks was not only anticompetitive but also inimical to a “free radio system.

See STARR supra note 172, at 380-381. 180 See Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 372 (1969) (upholding con-stitutionality of Fairness Doctrine); In the Matter of Editorializing Broadcast Licensees, 13 F.C.C. 1246, 1247, 1249, 1253-54 (1949) (containing the FCC’s articulation of the Fairness Doctrine by reaffirming broadcast licensee respon-sibilities to devote reasonable amount of time to consideration of public issues among others); KATHLEEN ANN RUANE, CONG. RESEARCH SERV., R 4009, FAIRNESS

DOCTRINE: HISTORY AND CONSTITUTIONAL ISSUES 2 (2011) (explaining history of Fairness Doctrine). 181 See Red Lion Broad. Co., 395 U.S. at 371-72 (setting forth the facts of the case).


regulation of the Fairness Doctrine was being challenged in the courts; the Court of Appeals for the Seventh Circuit understood that it was unconstitutional.182 The case reached the Supreme Court in Red Lion Broad. Co. v. FCC, which upheld the Fairness Doctrine as constitutional.183 The majority opinion by Justice White was much more skeptical of the argument that the right of reply stimulated self-censorship than the majority in Tornillo was a few years later.184 The Tornillo majority made a great effort to distinguish itself from Red Lion based on the fact that broadcasters’ speech was inher-ently regulated due to the need to allocate spectrum, whereas the press was never regulated in the first place.185 Justice White in fact did seem to place a great deal of relevance in the fact that regulation was unavoidable, but he also recognized the merits of having radio convey “representative community views on con-troversial issues.”186 The negative liberty dimension of free

182 See Radio Television News Dirs. Ass’n. v. U.S., 400 F.2d 1002, 1021 (7th Cir. 1968), cert. denied, 89 S.Ct. 631(1969) (holding that Fairness Doctrine collides with First Amendment free speech guarantee and so is unconstitutional).See also Red Lion Broad. Co., 395 U.S at 394 (upholding constitutionality of FCC’s Fairness Doctrine). 183 See Red Lion Broad. Co., 395 U.S. at 400 (upholding constitutionality of the Fairness Doctrine). 184 See Red Lion Broad. Co., 395 U.S. at 393 (calling the risk of self-censorship and by extension elimination coverage of controversial issues speculative); Tornillo, 418 U.S. at 258 (reversing Supreme Court of Florida’s judgment on grounds that newspaper has First Amendment right to make decisions about editorial content and exclude appellee’s replies). 185 See Tornillo 418 U.S. at 256-57 (explaining that while newspaper is not in-herently restricted by finite technological limitations confronting broadcast-ers, newspapers are restricted by a finite amount of column space). 186 See Red Lion Broad. Co., 395 U.S. at 394 (stating “[t]o condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to ex-clude from the airways anything but their own views of fundamental ques-tions.”).


speech surely does not encompass such a thing: all that the state must do is keep out of the speech arena.187 In any event, the escape route for those claiming that the First Amendment forbids government intervention and says absolute-ly nothing else is to argue that the radio station’s exclusion of Fred Cook’s speech amounted to state action because of the gov-ernment’s involvement in spectrum licensing.188 If, for argu-ments sake, this proposition is accepted, it follows that it was government action excluding speech.189 But the Supreme Court has consistently stated that when government acts as speaker, its editorial choices are beyond judicial scrutiny.190 One example is Arkansas Educ. Television Comm'n v. Forbes.191

187 See Tornillo, 418 U.S. at 258 (illustrating the First Amendment right news-paper editors have to review the content of their newpaper, and stating that any governmental intrusion with that right results in a First Amendment viola-tion). 188 See Sunstein, supra note 61, at 142-43 (outlining the problem that occures when the government grants spectrum licenses exclusively to large institu-tions, excluding alternative views and voices, which removes constitutional remedies because these grants of power are scene as private).

But the key point is that a right of exclusive ownership in a television network is governmentally conferred; the exclu-sion of the would-be speakers is backed up, or made possi-ble, by the law of (among other things) civil and criminal trespass. It is thus a product of a governmental decision.

See Sunstein, supra note 61, at 143. The author does later acknowledge that there is a positive dimension of the First Amendment. See Sunstein, supra note 61, at 145. 189 See Sunstein, supra note 61, at 142-43 (providing the legal framework for the conclusion that the radio station’s exclusion of Fred Cook’s speech was caused by government action). 190 See Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 683 (1998) (approving the government’s involvement to exclude Forbes). 191 See id. (upholding the lower court’s decision to exclude Forbes from broad-cast). The majority opinion by Justice Kennedy made it clear the

public forum doctrine should not be extended in a mechanical way to the very different context of public television broad-casting . . . broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that sta-tions and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations.

Id. at 672-673.


The constitutional mission to promote speech in the radio medi-um is apparent in decisions by Congress, the FCC and the Su-preme Court.192 When the Commission decided to discontinue the enforcement of the fairness doctrine in 1987, it was only after a report two years earlier that had discussed the problems with the doctrine, declaring that it was no longer needed because “the interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today.”193 That is to say, it did not revise the interpretation of the First Amendment that had motivated the doctrine in the first place.194 Rather, it merely found that the conditions the First Amendment called for were in place even without governmental regulation.195 As with the press, radio regulation shows that the idea of a posi-tive dimension of free speech consisting of active promotion of the conditions for disseminating opinions is effectively present in the interpretation performed by all three branches of govern-ment.196 Like with the press, the technical aspects of the medium frustrate any attempts to affirmatively promote free speech in a

192 See H.R. 9971, 69th Cong. (1927) (creating procedures for radio licensing under the Radio Act of 1927); In the Matter of Inquiry into Section 73.1910 of the Commn.'s R. and Regulations Concerning the Gen. Fairness Doctrine Obli-gations of Broad. Licensees, 102 F.C.C.2d 142, 147 (F.C.C. 1985) [hereinafter Fairness Doctrine Inquiry] (arguing for the repeal of the fairness doctrine be-cause, in practice, it does not promote free discussion of controversial issues); See also Red Lion, 395 U.S. at 400 (upholding the constitutionality of the fair-ness doctrine to promote free speech). 193Fairness Doctrine Inquiry, 102 F.C.C. 2d at 147 (finding fairness doctrine no longer effectuates public interest in “access to diverse and antagonistic sources of information”).; See RUANE, supra note 180 at 5-7 (discussing FCC’s repeal of fairness doctrine); In Re Complaint of Syracuse Peace Council Against TV Station Wtvh Syracuse, New York, 2 F.C.C.R. 5043, 5057 (F.C.C. 1987) (find-ing the fairness doctrine is “not narrowly tailored to achieve a substantial gov-ernment interest”). 194 See Fairness Doctrine Inquiry, 102 F.C.C. 2d at 147-48 (explaining the Fair-ness Doctrine inhibits free speech in broadcast journalism, in part due to the expansion of the information services marketplace). 195 See id. at 148 (explaining it is unnecessary to rely upon intrusive govern-mental regulation). 196 See Barron, supra note 140, at 1678 (concluding that in order to secure an effective forum for the expression of divergent views, statutory or judicial ac-tion is necessary).


fashion that does not violate the negative dimension of the same right.197 Radio is a poor object of this kind of regulation because – exactly like printed media – it does not let government or the broadcaster itself split the decision to give access to the medium from that of when and to what extent that access will be exer-cised.198 This is crucial because granting access will always inevi-tably mean tampering with the media owner’s editorial discre-tion.199 To be sure, I do not disdain the contribution of some aspects of a market mechanism to the development of a rich pub-lic sphere but market freedom alone isn’t enough in the field of media.200

197 See BARRON, supra note 151, at 309 (explaining the technical that could arise if the right of access were imposed on newspaper editors). This is precisely why Jerome Barron clarified that what was meant by a right of access to the media wasn’t simply a subjective right, but rather a whole set of legal mecha-nisms smartly crafted to facilitate the flow of a diversity of views through pri-vately-owned mass media. See BARRON, supra note 151, at 309. As he put it: “No one has suggested that the entire process of editorial decision-making be submitted to some external decision-maker. The access idea is at its simplest operational level an effort to make the traditionally open sections of the news-paper open in fact. . . . Access will open up only those parts of the newspaper which maintain the pretense of openness. As to the requirement of reply space for persons or groups attacked in an editorial, access only implements that debate which presumably freedom of the press exists to assure.” BARRON, supra note 151, at 309. 198 See BARRON, supra note 151, at 309 (explaining that the right of access would impose a duty upon broadcasters to allow access to anyone who de-sired it). 199 See BARRON, supra note 151, at 309 (describing a circumstance in which an editor does not have the discretion to choose what to publish). 200 See STARR, supra note 172, at 401 (arguing that market freedom alone is not enough in the field of media). “The market, even when its products are dis-tasteful, is a continual stimulus to innovation outside the market and in reac-tion to it. In a dynamic sense, markets in liberal societies enrich the public sphere far more than they impoverish it. If, however, all were left to the mar-ket – if government had not promoted communications networks, the press, education, and innovation while attempting to check tendencies toward exces-sive concentrations of power – the public sphere would be poor indeed.” STARR, supra note 172, at 401.


4. THE REGULATION OF CABLE AND TELEVISION When cable companies first started operating, they remained mostly unregulated.201 Only in the 1960’s did the FCC come out stalwartly in rescue of local TV stations, forcing cable companies to carry them with the justification that if local stations had to compete with cable they would lose advertisers, threatening their existence and, as a result, impairing access to information by people in rural areas where cable wasn’t present.202 Hence much of cable regulation was about protecting access to the public sphere by underprivileged groups, not about abstaining from regulating speech.203 The best proof of such promotional regulation of expression in cable is the FCC’s adoption of public access channel requirements in the early 1970’s.204 Cable operators of a certain size were forced to reserve a small amount of channels for public local pro-gramming, something that the Supreme Court upheld in United States v. Midwest Video Corp.205 The government-mandated pro-

201 See Robert F. Copple, Cable Television and the Allocation of Regulatory Pow-er: A Study of Government Demarcation and Roles, 44 Fed. Comm. L.J. 1, 13-15 (1991) (commenting on the FCC’s refusal to assert jurisdiction over the cable television industry until the 1960’s). 202 See id. (noting FCC’s prior inaction in cable television regulation); see also U.S. v. Southwestern Cable Co., 392 U.S. 157, 160 n.4, 165 (acknowledging the uncertainty regulation could have on audiences and stations’ revenue). 203 See Southwestern Cable, 392 U.S. at 166 (discussing the FCC’s finding of ju-risdiction over the cable television industry); see also Proposed Rulemaking, 1 F.C.C.2d 453, 456 (1965) (noting the policy reasons for regulating cable televi-sion systems). 204 See Title 47 – Telecommunication: Cable Television Service; Cable Televi-sion Relay Service, 37 Fed. Reg. 3252, 3289 (Feb. 12, 1972) (setting forth re-quirements for cable television including public access channels in FCC Report and Order on Cable Televsion Service). 205 See 406 U.S. 649, 652 (1972) (noting that the FCC sought public comment on the proposed requirement that cable broadcasters provide public access channels). Justice Brennan’s majority opinion framed the issue as one of free-dom of expression promotion:

In this light the critical question in this case is whether the Commission has reasonably determined that its origination rule will ‘further the achievement of long-established regula-tory goals in the field of television broadcasting by increasing the number of outlets for community self-expression and


visioning by cable companies of a platform for “community self-expression” became a tradition very hard to explain by the nega-tive liberty interpretation of the First Amendment.206 There is undeniable governmental positive action, arguably in the crea-tion of a public forum supported by cable companies.207 While Midwest upheld the state action that created public access channels, the ruling in Denver Area Educ. Telcomms. Consortium Inc. v. FCC208 prevented the legislator from allowing a private ca-ble company’s restriction of the programming in such chan-nels.209 The Cable Television Consumer Protection and Competi-tion Act of 1992 contained provisions on the limitation of obscene content in cable, which had their constitutionality chal-lenged.210 The rule that would allow cable companies to censor

augmenting the public's choice of programs and types of ser-vices . . . .We find that it has.

See id. at 667-68. 206 See Midwest Video Corp., 406 U.S. at 654 (referring to cable television’s po-tential as an outlet for “community self-expression”). 207 See David Ezhrenfest Steinglass, Extending Pruneyard: Citizens’ Right To Demand Public Access Cable Channels, 71 N.Y.U. L. REV. 1113, 1135-36 (1996) (“require[ing] cable operators to provide free channel space to the public edu-cation and governmental programmers”). Whether or not public access chan-nels can be seen as a public forum depends on what role cable companies are seen to fulfill:

If cable is treated as a newspaper, regulations that impede the full editorial discretion of the operator (and access channels fall within that description) may be deemed content-specific, invalid under the strict standard set by Tornillo, and a viola-tion of the operator's First Amendment rights, thus preclud-ing application of the public forum doctrine to cable under PruneYard. On the other hand, if cable is analogized to broad-casting, or granted special status as a medium not entitled to the same protection as the press, access rules more closely resemble economic regulations, similar to those upheld in As-sociated Press v. United States, and therefore do not repre-sent a violation of the First Amendment rights of the opera-tor.

See id. at 1137. 208 518 U.S. 727 (1996). 209 See id. at 760 (providing Supreme Court’s reasoning for striking down the plan to allow private cable companies to restrict certain programming). 210 See id. (challenging and deeming the relevant provisions of the act uncon-stitutional, finding that they were not narrowly or reasonably tailored to ac-complish their intended purpose).


obscene programming in public, educational and governmental channels was struck down by the Court as it impinged on free speech.211 Even though the Justices did not agree on the doctrine that should be applied to reach this conclusion,212 the result was the protection by the Court of a positive function of free speech against the legislator’s choice (a positive function that had been previously created by Congress).213 Again, there is a strong ar-gument for the acknowledgement of a government-mandated public forum in Denver Area,214 something at odds with the nega-tive liberty interpretation of free speech.215

211 See id. (deciding that the provisions in the act are not consistent with the First Amendment). 212 See id. at 740 (expressing the various approaches illustrated by the differ-ent judges). Justice Breyer, writing for the majority, refused to explain the Court’s decision with precedents created for other media, such as print or broadcasting:

Both categorical approaches suffer from the same flaws: They import law developed in very different contexts into a new and changing environment, and they lack the flexibility nec-essary to allow government to respond to very serious prac-tical problems without sacrificing the free exchange of ideas the First Amendment is designed to protect.

See id. 213 See Yochai Benkler, Free as The Air to Common Use: First Amendment Con-straints on Enclosure of The Public Domain, 74 N.Y.U. L. REV. 354, 385 (1998) [hereinafter Common Use] (stating the court in Denver Area refrained from institututing a restraint that would be less than a positive First Amendment right of access to communication media). Because this promotional function was firstly recognized and accepted by government and only later mandated by courts, it’s possible to argue that the Denver Area ruling wasn’t quite about a positive dimension of free speech:

Denver Area, for all its opacity, indicates how a constitutional constraint could implement the normative recognition of the First Amendment costs imposed by concentrated private con-trol over information flows. This constraint would be some-thing less than a positive First Amendment right of access to communications media, but something other than a pure commitment to avoid government regulation.

See id. 214 See Jonathan H. Beemer, Denver Area Telecommunications Consortium, Inc. V. FCC and The Public Forum Status of Cable Access Channels, 63 BROOK. L. REV. 955, 983 (1997) (explaining “editiorial discretion in a cable public access channel is insulated from both control of cable operators and local franchising authorities” which supports the argument that they are a public forum). Jona-


The tides turned in the 1970’s, as the cable network grew sub-stantially across the country.216 The FCC could no longer aid TV stations without raising suspicion of undue political favoritism and by the end of the decade the FCC dropped regulation entire-ly.217 But must-carry was re-enacted by the Cable Act of 1992.218 It contained Congress’ objectives in the regulation of the field of television: increase diversity in programming, increase availabil-ity of such programming to people in non-served or underserved areas and to stimulate the advancement of the technologies it in-volved.219 The FCC issued a Report and Order to implement and further specify the provisions in the Act.220 Although it purposely avoided defining what the public interest was in evaluating con-

than Beemer defends that the majority should’ve supported Justice Kennedy’s opinion in favor of applying the public forum doctrine to private cable compa-nies: “Both the nature of the cable franchising process, and the terms of the 1984 and 1992 Acts indicate that cable operators have neither complete prop-erty interests in access channels, nor editorial discretion in the programming contained on them.” See id. at 980. 215 See id. at 983 (stating while the 1984 cable act does not allow control for public access channels it does allow control for government access channels). 216 See Sharon Strover, United States: Cable Television, THE MUSEUM OF

BROADCAST COMMUNICATIONS(March 20, 2013), archived at www.webcitation.org/6FGEx4CGj (discussing two significant events that spurred the growth of the cable network during the 1970s). 217 See id. (discussing two cases that led to the deregulation of the cable net-works). 218 See id. (explaining the Cable Act of 1992 re-enacted a “must-carry” plan). 219 See 47 U.S.C. § 548(a) (2006) (illustrating the purpose of the amendment). It added a section to the Communications Act of 1934 (§ 548(a)). See id. § 548(a) establishes that the goal of this regulation

. . . is to promote the public interest, convenience and necessi-ty by increasing competition and diversity in the multichan-nel video programming market, to increase the availability of satellite cable programming and satellite broadcast pro-gramming to persons in rural and other areas not currently able to receive such programming, and to spur the develop-ment of communications technologies.

See id. 220 See id. at § 548(c)(1), (f) (explaining the regulations the FCC was required to issue following the enactment of the amendment).


tracts between companies in this context, it did show a concern with individuals in underserved areas.221 Congress had gone out of its way during discussions on the 1992 Act to present empirical evidence that would support its decision to protect TV broadcasters.222 The main argument was that a large share of the population – some 40% - depended on broad-cast TV because the cable network didn’t serve them.223 Gov-ernment was actively interfering with speech and this realization should by itself result in the invalidation of must-carry, under the traditional First Amendment rationale.224 But in Turner Broad. Sys. Inc. v. F.C.C. (Turner I), the opinions of the Justices framed the question as one of inquiring upon the legality of Congress’ pur-sued goal.225

221 See First Report and Order, 8 FCC Rcd. § 3359 (1993) (showing a concern for underserved areas while not defining what a public interest is). 222 See Strover, supra note 216 (providing empirical data including high per-centage of households subscribed to cable television as part of Congressional debates leading to 1992 Cable Act). 223 See Strover, supra note 216 (stating 60% of American households were ca-ble subscribers by 1992). Cable companies focused on urban centers where a high density of people meant a big concentration of (potential) customers. In-vesting on infrastructure to serve urban areas was much more profitable than bringing cable all the way up to small towns in isolated areas. So there was good reason to intervene in the market with the aim of saving local stations, allegedly the only source of news and information for such communities. An-other reason for mandating cable to reserve channels for local stations was that verticalization of the former created a market environment unreceptive to small content producers, something conducive to a decrease in the number of program developers and, consequently, to less diversity in the programming available for viewers. See Strover, supra note 216 (discussing growth of cable industry prior to 1992 Cable Act). 224 See Midwest Video.Corp., 406 U.S. at 652 (describing the public interest in cable regulation to maintain an outlet for community self-expression). 225 See 512 U.S. 622, 630 (1994) (framing the issue as constitutionality of must-carry provisions in the 1992 Cable Act). It has been said that “[t]he no-tion that promoting free speech is a ‘governmental purpose’ lies at the heart of Turner [I] and makes clear how far the Court's constitutional theory has moved from negative liberty toward positive liberty.” See Matthew D. Bunker and Charles N. Davis, The First Amendment as a Sword: The Positive Liberty Doctrine and Cable Must-Carry Provisions, 40 J. BROAD & ELEC. MEDIA 77, 92 (1996).


The majority accepted the rationale for the necessity of must-carry, the intent vowed by Congress and the FCC.226 But because it did not trust that the currently available factual evidence indi-cated the possibility of TV stations going bankrupt and many Americans losing their only source of video programming, the majority remanded the case for the production of adequate proof.227 The case returned to the Court in 1997 in Turner Broad. Sys., Inc. v. F.C.C. (Turner II), and the must-carry scheme was fi-nally upheld as constitutional.228 The opinions issued in both rul-ings are telling of the acceptance by the Justices, of an interpreta-tion of First Amendment that goes well beyond negative liberty.229 There’s no doubt that Congress and the FCC went out of their way to actively promote a medium for speech that they believed ca-

226 See 512 U.S. at 638 (reasoning that limitations of broadcast medium require adjustment in First Amendment analysis). 227 See id. at 627 (remanding due to remaining issues of material fact). 228 See 520 U.S. 180, 185 (1997) (upholding constitutionality of must-carry provisions). 229 See Turner I, 512 U.S. at 657 (accepting government may take control of pathway of communication to prevent abuse by private power). In Turner I, Justice Kennedy’s majority opinion couldn’t have been more obvious: “The First Amendment’s command that government not impede the freedom of speech does not disable the government from taking steps to ensure that pri-vate interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas.” Id. See also Turner II, 520 U.S. at 226-27 (Breyer, J., concurring in part) (setting forth another possi-ble reason to uphold the must-carry provision). Justice Breyer’s concurrence in Turner II went into more detail:

[t]he statute’s basic noneconomic purpose is to prevent too precipitous a decline in the quality and quantity of program-ming choice for an ever-shrinking non-cable-subscribing segment of the public. This purpose reflects what ‘has long been a basic tenet of national communications policy,’ namely that ‘the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.’ (citation omitted) That policy, in turn, seeks to fa-cilitate the public discussion and informed deliberation, which, as Justice Brandeis pointed out many years ago, demo-cratic government presupposes and the First Amendment seeks to achieve.

Id.


tered to Americans living off of urban centers.230 This happened ever since the Commission adopted must-carry in the 1960’s.231 As was cleverly denounced by Justice O’Connor in Turner I, this regulation was content-specific – which strengthens the argu-ment that it had a speech-enabling purpose. 232 Another field where speech-promoting regulation of cable has been carried out is the oversight of mergers and acquisitions involving large com-panies.233 Again, my argument is that the state did promote certain condi-tions needed for free speech in an affirmative way in the regula-tion of broadcast TV and cable. The notion that media regulation needs to be proactive and not only reactive has garnered some support in literature.234 Whether the government or the Su-preme Court thought that there was an enforceable duty to spon-sor freedom of expression is beside the point; what matters for the idea that I am proposing is that government felt that there were good reasons to enact such policies, regardless of it being

230 See Marvin Ammori, Another Worthy Tradition: How the Free Speech Curric-ulum Ignores Electronic Media and Distorts Free Speech Doctrine, 70 MO. L. REV. 59, 74 (2005) (stating the government interests at play in Turner I and II “. . . involve and strongly support structural regulations--media-ownership regula-tions or required-access regulations meant to increase speech diversity and foster other First Amendment values.”) 231 See Bunker, supra note 225, at 81 (commenting that the FCC’s defense in Quincy was that “the must-carry rules were necessary to prevent the demise of local broadcasting and to promote a diversity of viewpoints”). 232 See Bunker, supra note 225, at 89 (stating “[t]he notion that government's preference for one speaker over another does not trigger content-based scru-tiny seems to reflect the ascendance of positive liberty notions in the Court's jurisprudence.”) 233 See Todd Shields, Comcast Wins U.S. Approval to Buy NBC Universal From GE for $13.8 Billion(Jan. 18, 2011), archived at www.webcitation.org/6FNzE3ZoA (encouraging Comcast to come up with commitments that would be seen as offsetting the concern with diversity and localism that the deal had raised, in-cluding several steps to make broadband internet and video services more ac-cessible to low-income families and rural communities, to guarantee the con-tinuance of local programming by the NBC stations, to ensure availability of content for the Spanish-speaking community and to maintain public, educa-tional and governmental programming on television and to introduce it online). 234 See Goodman, supra note 170, at 1393 (suggesting a government interven-tion should be proactive in media policy goals).


mandated to do so or not. These events fall out of the scope of the First Amendment speech norm as only a freedom right.235 There are other major drawbacks of actively protecting speech in the TV and cable settings. First, the number of entities benefitted by must-carry is still absurdly low when compared to the diversi-ty of interest groups and view in a small-town community.236 The amount of people that can make a phone call is massively bigger than the quantity of people that can have a cable channel – or even a small segment within a channel.237 Second, communi-cating in this medium is more demanding than simply writing a letter to the editor or recording a two-minute answer to a news story.238 The multimedia aspect of video makes expressing per-sonal views somewhat more complex.239 Third, the same prob-lem of radio and the press persists: admitting a person’s speech into a TV channel means automatically choosing how and when this speech will be portrayed.240 Surrendering this later decision to all individual speakers entering the channel, or to the govern-ment, is something the editor simply cannot do.241 Therefore it is very difficult for a policy that promotes speech in television and

235 See Ammori, supra note 230, at 64 (construing the reasoning as the “pe-riphery”, while consciously maintaining the absolute negative liberty approach the “core”). 236 See Emerson, supra note 138, at 826-27 (articulating the difficulty of First Amendment expression on television versus other forms of media). 237 See Emerson, supra note 138, at 827 (commenting on how the transition from wired to wireless technology expands the availability of the resource or good at issue). 238 See Emerson, supra note 138, at 828 (remarking upon the right-to-know doctrine under the First Amendment and how it has effected the flow of in-formation under the same). 239 See Emerson, supra note 138, at 833 (introducing the proliferation of view-points because of technology and the growing conflict with the captive audi-ence and covert expression doctrines). 240 See Emerson, supra note 138, at 804 (discussing the importance of need for balance presentation and professional judgment of new points of view as me-dia expands). 241 See Emerson, supra note 138, at 812 (commenting upon government’s tra-ditional role of providing space for free speech while also being limited in its ability to censor the speaker or differentiate between speakers because of the content of their speech).


cable to avoid being deficient in its results and overly restrictive of third party’s freedom of expression in its implementation.242

5. ACCESS TO INFORMATION The aforementioned article 19 of the Universal Declaration of Human Rights includes under the umbrella of the right to free-dom of expression, in addition to the traditional liberty of having and disseminating an opinion, two other rights: to seek and to re-ceive information.243 One of the arguments against interpreting free speech to have a positive dimension or against the recogni-tion of a right to internet access is that the traditional right to ac-cess information would properly address any of these needs.244 There are at least two reasons, however, why the right to access information does not fit the bill.245 The story of the enactment of access to public information laws and the enforcement of this subjective right has been informed by the acknowledgment of the value of government transparency – it is information about how the state works.246 To be sure, spin-offs like the right to access environmental information247 take a

242 See Emerson, supra note 138, at 826 (affirming the kind of regulation up-held in Turner states “[t]he structure thus established for the use of radio and television facilities would seem to constitute the bare minimum demanded by the affirmative side of the first amendment. It falls far short of meeting the standards of a thriving, successful system of freedom of expression. The Su-preme Court, however, has shown no inclination to press the requirements of the first amendment any further.”). 243 See Universal Declaration of Human Rights, supra note 5 (discussing the additional rights given under the Universal Declaration of Human Rights). 244 See Richmond Newspapers, 448 U.S at 597-98 (ruling narrowly to carefully constrain the right to the public access during a criminal proceedings). 245 See JOSHUA KNAUER & MAURICE RICKARD, Internet global environmental infor-mation sharing, in INFORMATION SYSTEMS AND THE ENVIRONMENT, 185, 187 (Dean-na J. Richards et al., eds., 2001)(discussing the two competing roles the Inter-net plays in information sharing). 246 See PATRICK D. EAGAN, LYNDA M. WIESE, & DAVID S. LIBEL, Public Access to Envi-ronmental Information, in INFORMATION SYSTEMS AND THE ENVIRONMENT, 173, 175-76 (Deanna J. Richards et al., eds., 2001) (noting the increase in public access is being demanded by different agencies). 247 See KNAUER, supra note 245, at 191 (accessing environmental information is increasingly impacted by the extent to which people have access to the inter-net); EAGAN, supra note 246 at 176 (stating “[t]he mere existence of technology


somewhat distinct path, but they are very specific, independent developments, not the very embodiment of the right to access public information itself.248 Securing the basis and media for in-formation flow is very closely related to popular oversight of government, but these two are not the exact same thing.249 The right to access public information is much more about the latter, in the sense of accountability, even if in some instances the regu-lation of the medium or instrument for accessing the information is seen as implied in the right.250 The right to internet access, on the other hand, is solely centered on the medium and on information flow.251 In addition, although the relationship between free speech and control of government by the people is evident, the right to freedom of expression is de-fined by a strong and clear self-determination core element.252 This is the same with the right to internet access, as a result of its natural enabling power: it gravitates much more closely to indi-vidual autonomy than the right to access public information.253 Second, the instrumental and medium-related aspect of the right to access public information is increasingly being assimilated by

to increase public accessibility to environmental information has increased demand for information collected by state bureaucracies.”). 248 See EAGAN, supra note 246 at 174 (noting the information is collected only for specific reasons and therefore may not be able to answer other questions). 249 See EAGAN, supra note 246 at 181 (noting files are accessable to the public, but failing to design electronic systems the public has to tools and knowledge to use). 250 See DAVID BANISAR, The Right to Information in the Age of Information, in HUMAN RIGHTS IN THE GLOBAL INFORMATION SOCIETY, 73, 84-5 (Rikke Jørgensen, ed., 2006) (publishing government information on the internet is by and large demanded). 251 See KNAUER, supra note 245 at 187 (discussing the internet is a unique me-dium which allows information to be passed easily, allowing people in all countries access). 252 See KNAUER, supra note 245 at 187 (noting the internet is a largely unregu-lated medium where there is not a single controlling agent). 253 See KNAUER, supra note 245 at 188 (discussing the internet allows individu-als to express and public their ideas and opinions without censorship),


a right to internet access.254 Provisions in the Freedom of Infor-mation Act,255 for example, force government to use the internet to achieve compliance with its duty in this field.256 A more prac-tical view of the ecology of transparency requires the acknowl-edgement of the role of the right to access public information as part of a system, not as the only element.257 As new models of transparency like Wikileaks arise and make a significant impact in this environment, protecting their ability to operate online without undue curtailments of the conditions whereby they

254 See KNAUER, supra note 245 at 188 (discussing different ways the internet is used as a tool for people to voice their opinions and concerns in a public fo-rum), 255 See 5 U.S.C. §552(2)(E) (1996) (Electronic Freedom of Information Act of 1996) (establishing an index of the data must be made public and setting out what the data consists of).

For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been estab-lished by the agency, by other electronic means. . . . Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999.

Id. This data consists of “copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.” See 5 U.S.C. §552(2)(D). 256 See 5 U.S.C. §552(7)(B) (instructing federal to establish telephone and In-ternet access points for requests under the Act). 257 See Seth F. Kreimer, The Freedom of Information Act and the Ecology of Transparency, 10 U. PA. J. CONST. L. 1011, 1017, 1024 (2008)

To the extent that FOIA has functioned as an effective check, it has been a part of an ecology of transparency that includes the permanent infrastructure of federal civil servants with in-tegrity, internal watchdogs, reasonably open opportunities to publish and share information, and a set of civil society actors capable of pursuing prolonged campaigns for disclosure . . . . It has been predominantly the availability of well-financed NGOs, combined with the possibility of assistance from the private bar, that has made FOIA a force to be reckoned with in this arena.

Id.


functionis ontologically keener to securing access to the internet to all citizens than to guaranteeing a right to access public infor-mation. 258

C. FREE SPEECH AND INTERNET ACCESS PROMOTION IN A DEMOCRACY There is an elementary, direct relationship between an under-standing of democracy and the way law addresses the issue of communication.259 From a sociological perspective, this can be explained by the fact that communicative acts are the building blocks of society itself.260 As there is no society without commu-

258 See Yochai Benkler, A Free Irresponsible Press: Wikileaks and The Battle Over The Soul of The Networked Fourth Estate, 46 HARV. C.R.-C.L. L. REV. 311, 396-97 (2011) (explaining as new models of transparency continue to arise, the need for government action to ensure the right of public access to information is not as essential). The U.S. government dealt vigorous blows to Wikipedia with a tactic that disguised state action repressive of online speech by having private companies execute the censorship at the indirect behest of high-level politi-cians. See id. These events further the realization that governmental transpar-ency today is very much about a free internet:

The battle over Wikileaks has had another salutary effect: it has delivered a wake-up call to everyone who thought the free and open Internet was already a fact. Freedom of the press is no longer the exclusive province of those who own one, but while the Internet has drastically lowered the barri-ers to entry into the public sphere, it has not eliminated them. Especially when that public sphere is built on privately owned infrastructure.

See MICAH SIFRY, WIKILEAKS AND THE AGE OF TRANSPARENCY 177-178 (2011) (de-scribing the changing impression of the internet and the ability to gain infor-mation.. 259 See NIKLAS LUHMANN, SOCIOCYBERNETIC PARADOXES: OBSERVATION, CONTROL, AND

EVOLUTIO0N OF SELF-STEERING SYSTEMS (F. Geyer and J. van der Zouwen, eds., 1986) (explaining the direct relationship between democracy and how the laws in a democracy handle communication issues). 260 See id.

Social systems use communication as their particular mode of autopoietic reproduction. Their elements are communica-tions which are recursively produced and reproduced by a network of communications and which cannot exist outside of such a network. Communications are not 'living' units, they are not 'conscious' units, they are not 'actions'. Their unity requires a synthesis of three selections: namely information utterance(1) and understanding (including misunderstand-ing(2).


nication, a society’s choice on a model of self-government im-pacts a choice on how to regulate communications.261 It seems that the model of democracy exercised in America requires legal mechanisms for fostering and promoting speech, not only for preventing abusive regulation of it.262 Very few people adhere to an elitist model of democracy, where a small group of people rules because they are the only ones with the skills and motivation to do so, while periodical elections are held merely to ensure alternation in power and keep the people happy with government by legitimating it.263 If a liberal plural-ism model is defined as one where different interest groups bar-gain and negotiate the distribution of power and social goods in order to reach a compromise, whereas a republican model as-sumes that people can reach agreement on a unique common good through debate, then it seems C. Edwin Baker’s contention that America constitutes a complex democracy is reasonable.264 This last model, according to Baker, takes the lesson from liberal pluralism that a common good doesn’t exist because societies are, as a rule, abound with diversity.265 And it incorporates the no-tion of republican democracy which dictates that discourse is preciously needed to allow interest groups to build their own identity and develop their own concept of common good so as to then deliberate and compromise at the society-wide level.266

See id. at 174 (emphasizing the idea that communication is the building block of society). 261 See id. (discussing the varies modes of autopoietic reproduction that dif-ferent social systmes achieve through communication). 262 See U.S. CONST. amend. I (providing an example of one of the legal mecha-nisms that promotes and fosters free speech). 263 See C. EDWIN BAKER, MEDIA, MARKETS, AND DEMOCRACY: COMMUNICATION, SOCIETY

AND POLITICS 130 (2001) (describing the elitist model of democracy and why few, dominated by enlightenment values, are likely to accept the idea). 264 See id. at 144-45 (illustrating that America is a complex democracy, one which reaches “fair scope” through compromise and debate). 265 See id. at 146 (citing Mill’s argument that because of the diversity that exists in any given society, it is essential that individuals be allowed to live different lives). 266 See id. (expressing the importance of discourse to ensure the development of a successful democracy).


It follows that the regulation of communication and the media purports a free press, because all of the above-described models for democracy include this watchdog actor as a check on gov-ernment.267 It also includes free speech as a negative liberty to prevent government from muzzling people.268 And it presuppos-es that there’s an inherent value in as wide a participation of the people in political discussion as possible.269 Therein lies the need to positively promote speech in a complex democracy.270 This state duty can be dissected to reveal two elements: a macro-intervention and a micro-intervention, according to Thomas Em-erson.271 The distinction is drawn so that governments are better prepared to promote the values of the First Amendment without favoring any specific political or worldview.272 Diversity is to be cherished and elevated, not leveled.273 The macro-intervention is the operation whereby the state chooses an area or element of

267 See id. at 153 (expressing the role media plays in each of the types of de-mocracy). 268 See id. (inferring that because of the importance media plays in spreading the values of the democracy, a negative right to free speech is important). 269 See BAKER, supra note 263 (suggesting that in order to facilitate a successful democracy, wide participation of people in political discourse is necessary). 270 See Benkler, supra note 213 at 378 (expressing the importance of promot-ing speech positively in a democracy). There’s a reasonable consensus among scholars that avoiding media concentration (a state duty I would classify place under the tenet of the positive dimension of First Amendment) is an interest pursued in light of a certain concept of what democracy entails. That is, such arguments “seek to assure robust political discourse, and defend the wide dis-tribution of information production on the ground that it is crucial to that goal.” Furthermore, “[t]he First Amendment concern with concentrated in-formation production arises when a society’s legal institutions create system-atic asymmetries in the distribution of power among its constituents to affect their information environment.” Id., at 383. 271 See Emerson, supra note 138, at 803-04 (illustrating the distinction be-tween macro and micro government intervention in affirmative First Amend-ment cases). 272 See Fiss, supra note 48, at 1416 ( stating “[t]he duty of the state is to pre-serve the integrity of public debate-in much the same way as a great teacher-not to indoctrinate, not to advance the ‘Truth’, but to safeguard the conditions for true and free collective self-determination.”). 273 See, e.g., National Ass’n of Theatre Owners v. FCC, 420 F.2d 194, 208 (1969) (opining restrictions on pay TV programs were acceptable because it encour-aged more, rather than less, diversity on the public airwaves).


social life to act, affirmatively promoting freedom of expres-sion.274 Micro-intervention comprises the arrangements and de-cisions taken within that area so as to carry out the macro-intervention’s objective.275 As I have previously shown, the mac-ro-intervention in areas such as radio, the press, TV and cable au-tomatically presets the arrangements made at the micro-intervention level.276 Because of the architecture of such media, the independence between the macro and micro-intervention, which is palpable in theory, became unfeasible in practice.277 This sealed the fate of the American government’s speech promo-tion policies in the 20th century: the neutrality that is essential to the micro-intervention was overridden by the operation of the macro-intervention itself.278 The reason why the popularization of the internet brings with it a profound qualitative change in the viability of fostering the con-ditions for speech to thrive is that the internet medium does not suffer from the same condition that was inherent to the other

274 See Emerson, supra note 138, at 803-4 (defining macro-intervention). 275 See Emerson, supra note 138, at 804 (explaining that the power to control macro area may be manipulated in order to control the micro area). 276 See Emerson, supra note 138 at 803-4 (giving an example of broad govern-mental regulation in radio and television by requiring broadcast licensee to devote certain portion of broadcast time to public interest programs without censoring program content and describing difficulty in making distinction be-tween micro- versus macro-level intervention); supra text accompanying notes 150-153 (discussing characterstics of press that make it generally easi-er to regulate); supra text accompanying notes 197-199 (discussing how radio, like the press, makes is difficult to regulate without impacting expression un-der the First Amendment ); supra text accompanying 159-162 (discussing ra-dio regulation, and allocation of its resources based on an evolving “public in-terest” standard); H.R. Res. 9971, 69th Cong. (1927) (creating procedures for radio licensing under the Radio Act of 1927); supra text accompanying notes 192-193 (recounting television and cable regulations intended to promote di-versity of programming). 277 See Emerson, supra note 138 at 804 (noting difficulty in making macro-micro intervention distinction). 278 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 283-84 (1964) (recognizing Constitutional limitations on State’s power to award damages for libel in ac-tions brought by public officials against critics of their official conduct); Hus-tler Magazine, Inc., 485 U.S. at 52 (saying public figures may be criticized with-out right to retaliate in most cercumstances).


media: admitting an individual into the medium entails in and of itself no decision on when, how and where this person will ex-press herself. 279 It’s not even that the channels aren’t scarce: they simply don’t exist as a pre-built structure.280 Rather, a new and different channel is made with any single, isolated communi-cative act.281 This overcomes the scarcity problem.282 An indi-vidual’s speech can overlap that of another infinitely, in an asyn-chronous fashion. This justifies the Supreme Court’s enthusiasm with the internet as a platform for speech in one of the first cases dealing with the web283 and goes a long way in satisfying the de-manding media regulation requirements that derive from choos-

279 See YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION

TRANSFORMS MARKETS AND FREEDOM 11 (2006) (explaining that the difference between the internet and mass media is that “the networked public sphere en-ables many more individuals to communicate their observations and their viewpoints to many others, and to do so in a way that cannot be controlled by media owners and is not as easily corruptible by money as were the mass me-dia”). This means that, from an economic (and thus also social) point of view, this evolution is decisive because it means

the basic technologies of information processing, storage, and communication have made nonproprietary models more at-tractive and effective than was ever before possible. Ubiqui-tous low-cost processors, storage media, and networked con-nectivity have made it practically feasible for individuals, alone and in cooperation with others, to create and exchange information, knowledge, and culture in patterns of social rec-iprocity, redistribution, and sharing, rather than proprietary, market-based production.

Id. at 462. 280 Cf. Nat’l Broad. Co., 319 U.S. at 216-18 (discussing regulation to maximize use of limited radio channels in the public interest). 281 See BENKLER, supra note Error! Bookmark not defined., at 10 (regarding the interenet as a public sphere that increases the possibilties for individuals to create their own public spheres alongside mass-media markets). 282 See Emerson, supra note 138, at 807-12 (describing problems occasioned by scarcity of physical facilities as predicates for governmental intervention). 283 See Reno v. ACLU, 521 U.S. 844, 853, 870 (1997) (stating “[a]ny person or organization with a computer connected to the Internet can ‘publish’ infor-mation” and that “[t]hrough the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and news-groups, the same individual can become a pamphleteer”).


ing a complex democracy model of self-government.284 The level to which putting an individual into a platform defines the condi-tions of their speech once there is, is the lowest in any communi-cations medium ever.285 Is there anything left for speech promoting micro-intervention, then? If the technical aspects of the internet were unchangeable, possibly not.286 This explains the moral and argumentative strength of the pleas for abatement of state regulation over the internet.287 None of these pleas recognized any advantage in mi-

284 See BAKER, supra note 266, at 187-192 (outlining the requirements). These requirements are not trifling! Baker argues that the complex democrats have several goals for media policy: ensuring the press’ role as watchdog; guaran-teeing media remains as a sphere for society-wide discussion (like the republi-cans); protecting pluralism in the media against corrupted segmentation and monopolization (like the liberals) and ensuring a proper balance between the two: isolation of voices and common dialogue. See id. (outlining the goals of media policy). Media policy thus calls for diagnosing society’s conditions in order to determine what it needs more at a specific time: partisan media for identity building and intra-group dialogue or common spheres for society-wide discussion and agreement on the common good. 285 See Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Free-dom of Expression for the Information Society, 79 N.Y.U. L. REV. 1, 5-7 (2004) (focusing on some main aspects of the difference between old media and the Internet, especially those that exacerbate the evolution in terms of the feasibil-ity of speech promotion policy and regulation). There are, of course, other as-pects of this distinction. See id. (claiming “digital revolution drastically lowers the costs of copying and distributing information”; “the digital revolution makes it easier for content to cross cultural and geographical borders”; “the digital revolution lowers costs of innovating with existing information, com-menting on it, and building upon it”; and, most important, lowering the costs of transmission, distribution, appropriation, and alteration of information de-mocratizes speech). 286 See Goodman, supra note 170, at 1454 (highlighting how incumbent pro-viders can reduce channel space or interests in rival networks by increasing their dominance within a particular niche). 287 See David Johnson and David Post, Law and Borders - The Rise of Law in Cy-berspace, 48 STAN. L. REV. 1367, 1400-01 (1995) (suggesting self-regulation on the Internet rather than state regulation); see also Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy Rules Through Technology, 76 TEX. L. REV. 553, 557 (1998) (listing differences in political and cultural val-ues as among the reasons why individual states should not have regulatory au-thority over the internet). The push back from Internet skeptics soon fol-lowed. See Jack L. Goldsmith, Against Cyberanarchy, 65 U. CHI. L. REV. 1199,


cro-intervention, only the downside: any regulation brings about a limitation of individual freedom.288 Micro-intervention in the case of the internet would carry with it the negative aspects and none of the positive ones.289 After it became clear that states could and did exert modifications to the internet’s architecture, the fear was instilled that such changes, pushed by the desire to assert national regulatory authority290 and to make the internet more secure291 would likely turn the internet into something very different from the decentralized, best-efforts network that it was by the early 1990’s.292 One of the main concerns is that if big media companies get to acquire transmission priority for their multimedia content over other kinds of expression, such as emails and political debate in forums, the internet will be no dif-ferent from mass media.293 Lawrence Lessig’s lesson in this con-text was, and remains, crucial: the architecture of the internet dictates the conditions for human behavior in it, but countries

1214-15 (1998) (suggesting Internet access be conditioned on consent of par-ticular legal regime); Neil Weinstock Netanel, Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory, 88 CALIF. L. REV. 395, 498 (2000) (advocating for intervention by international institutions and states to selectively regulate cyberspace). 288 See Netanel, supra note 287, at 406 (acknowledging possible harms to speech and association interests caused by state intervention that should be balanced on case-by case basis with its benefits); Reidenberg, supra note 287, at 557-58 (recognizing political complications inherent in regulation of inter-net). 289 See Netanel, supra note 287, at 406 (noting negative consequences of mi-cro-intervention); Reidenberg, supra note 287, at 557 (delineating potential constitutional roadblocks to regulating internet). 290 See Jonathan Zittrain, Be Careful What You Ask For: Reconciling a Global In-ternet and Local Law, Harvard Law School, Apr. 16, 2003 archived at www.webcitation.org/6FPp1xZsE (juxtaposing repressive censorship and freedom expression permitting harmful and constructive speech as the “point of inflection where the World Wide Internet sits”). 291 See JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET - AND HOW TO STOP IT 60 (2008) (explaining the consequences of one of the initial problems with cyber security). 292 See id. (stating because of the internet’s exposure to security risks is the reason it was able to achieve success). 293 See Howard Rheingold, The virtual community: homesteading on the elec-tronic frontier, archived at http://www.webcitation.org/6JOScSzoi (2000) (raising the red flag and alerting the public about a potential issue with the internet becoming commercialized).

http://www.webcitation.org/6FPp1xZsE


and private companies can alter the code and render this plat-form into something completely different from what it was in-tended to be.294 Is there a role for micro-intervention or, put simply, regulation of the internet?295 Arguably there is: to keep states and companies from changing fundamental aspects of the network.296 One way to frame the issue is to separate the internet into layers – a physi-cal layer, a logical layer, an applications layer and a content lay-er.297 Speech promotion duties require that a state omit from impacting change to the physical and logical layer in order to achieve regulation at the applications and content layers. This notion has been translated into a “layers-principle”.298 At this point it is clear that aside from something that the state must actively do to promote speech – give access to the internet – there is also something it must abstain from doing. The negative dimension of an internet access right is not the focus of this pa-per, as I have set out to explain how the positive dimension could work and be enforced by courts. However, seeing as I am gener-ally advancing the case for a right to internet access, it seems only appropriate to explain away an apparent confusion between the negative liberty side of the right to freedom of expression and of

294 See LAWRENCE LESSIG, CODE: AND OTHER LAWS OF CYBERSPACE, VERSION 2.0 317 (2006) (explaining architectures of cyberspace are now construed by private entities). This view of the constraining nature of architecture isn’t applied solely to virtual spaces. See Lawrence Lessig, The New Chicago School, 27 J. LEGAL STUD. 661, 677 (1998) (suggesting objective and subjective constrains may become ordinary tools that may be used in social, behavioral as well as economic legal analysis). 295 See John G. Palfrey, Four Phases of Internet Regulation in 77 SOCIAL RESEARCH

NO. 3, 18, Fall 2010, (, archived at www.webcitation.org/6FR5MiMRB (explor-ing how many believe that these last few years in internet history mark the recognition that it’s not longer about whether the internet should be regulat-ed, but rather how that will happen). 296 See Solum, infra note 297, at 818-19 (introducing theme focusing on mech-anisms designed to reduce regulation of the Internet by states). 297 See Lawrence B. Solum & Minn Chung, The Layers Principle: Internet Archi-tecture and the Law, 79 NOTRE DAME L. REV. 815, 816-7, 828 (2004) (dissecting the Internet architecture into a layers model). 298 See id. at 816-17 (defining the layers principle).


the right to internet access. Whereas the former is about re-strictions on what and how content can be restricted by govern-ment, the latter is about a state duty to refrain from changing the elementary components of internet architecture.299 For example: that government cannot forbid political speech on the internet is a result of the right to free speech;300 that it cannot alter the way the internet works so as to have speech from some entity be transmitted faster than that from another is a result of the right to internet access.301 Furthermore, because no constitutional or human right is absolute, in both these cases restrictions are al-lowed in certain circumstances.302 Hate speech is forbidden in some countries303 and prioritizing the transmission of data relat-ed to e-health services over that of normal internet traffic304 can be seen as a reasonable encroachment on the layers principle.305

299 See Christopher M. Schultz, Content-Based Restrictions on Free Expression: Reevaluating the High Versus the Low Value Speech Distinction, 41 ARIZ. L. REV. 573, 575 (1999) (introducing the concept of content-based restrictions and how they function); Solum, supra note 297, at 818-19 (discussing need for government to refrain from attempts to change the architecture of the Inter-net). 300 See U.S. CONST. amend. I.(prohibiting Congress from abriding the right to speech and expression). 301 Cf. Raymond Shih Ray Ku, Open Internet Access and Freedom of Speech: A First Amendment Catch-22, 75 TUL. L. REV. 87, 97-98 (2000) (discussing how the Internet’s connection architecture is control by the service providers). 302 See Cohen v. California, 403 U.S. 15, 19-20 (1971) (distinguishing between vulgar words and works intended to be obscene and incite violence); Roth v. United States, 354 U.S. 476, 485 (1957) (holding obscenity as an unprotected class of speech under the First Amendment); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (expounding upon unprotected classes of speech and the lack of value they have in society); Schultz, supra note 299, at 114 (remarking upon Supreme Court decisions and their applicability to open ac-cess regulations). 303 See Adam Liptak, Unlike Others, U.S. Defendes Freedom to Offend in Speech, THE NEW YORK TIMES, June 12, 2008, archived at www.webcitation.org/6GRndzO3k (discussing states which prohibit speech or indicia of hatred against others). 304 See Solum, supra note297, at 941-42 (giving an example that performing surgeries from remote locations using the internet justifies tampering with the logical layer to ensure Quality of Service (QoS) instead of best-effort in the transmission of data packets); Mehran Anvari, Craig McKinley, & Harvey Stein, Establishment of the World’s First Telerobotic Remote Surgical Service, Annals of Surgery, available at www.ncbi.nlm.nih.gov/pmc/articles/PMC1356984/


One of the key aspects of the negative dimension of the right to internet access is a prohibition on violations of the end-to-end principle.306 This has a normative content similar to that of the layers principle, but with a broader range of application and a simpler normative specificity.307 The end-to-end principle re-quires that no one except for the sender or receiver of data pack-ets on the internet discriminate between such packets.308 Intelli-gence should lie at the ends and the intermediaries must remain dumb – incapable of distinguishing between two data packets.309 This is also explained as a necessity for “network neutrality”.310 While the logical layer intermediaries – ISPs – would benefit greatly from being able to “gain conscience”, they must remain ignorant as to what is happening in the applications and content

(discussing the use of Quality of Service to link two hospitals to conduct sever-al telerobotic surgical procedures with positive outcomes and only very minor signal transmission delay that did not result in complications). 305 See Solum, supra note 297, at 818-19 (discussing how regulation encroach-es on the layered structure of the Internet while not completely disabling it). 306 See Mark A. Lemley & Lawrence Lessig, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, 48 UCLA L. REV. 925, 930-31 (2001) (describing how end to end design principle expands the competi-tiveness by enabling a wide variety of applications to use the network and maximizes the number of entities that can compete for use of the network). 307 See id. at 930 (explaining that by expanding the number of applications able to connect to the network, the end-to-end principal expands the competition). 308 See id. (illustrating the highly competitive nature of the end-to-end princi-ple as a result of the fact that within the principal, no single actor can tip the system in their favor). 309 See id. (enumerating the structure of the end-to-end principle and how its design does not discriminate among applications in resource allocation). 310 Nicholas Economides, “Net Neutrality,” Non-Discrimination and Digital Dis-tribution of Content Through the Internet, 4I/S: J.L. & POL’Y FOR INFO. SOC’Y 209, 212 (2008) (explaining that there is no distinction between the identities of the uploader and downloader). In this article, Economides presents an ac-count of what the net neutrality principle requires. See id. at 214-17 (discuss-ing the removal of non-discrimination requirements in net neutrality). But see Bruce M. Owen, The Net Neutrality Debate: Twenty Five Years after United States v. AT&T and 120 Years after the Act to Regulate Commerce, STANFORD

INSTITUTE FOR ECONOMIC POLICY RESEARCH, DISCUSSION PAPER NO. 06-15 (2007), ar-chived at www.webcitation.org/6FRHtNTJBwww.webcitation.org/6FRHtNTJB. (providing an argument opposing state regulation for ensuring net neutrality).


layers.311 Because of the continuing verticalization of these com-panies, who very often own or have a controlling interest in the content production corporations, allowing online content dis-crimination can be framed as an antitrust issue.312 The threat of market abuse calls for vetoing the ISPs from discriminating con-tent online, even as a conclusion reached by an originalist inter-pretation approach of the First Amendment.313 If the conditions for speech on the internet are artificially made scarce by the mo-nopolizing efforts of big media conglomerates, we would be right back at the place where access to the media was claimed as nec-essary.314 The copyright industry has exercised a monumental pressure for an obligation that ISPs engage in active filtering.315 While the Eu-ropean Court of Justice has come down against this idea,316 pro-viders in the United States have already started performing this

311 See Solum, supra note 297, at 816-17 (describing the nature of the layer in-termediaries). 312 See Solum, supra note 297, at 935 (discussing the anticompetitive issues arising out of vertical integration). 313 See Hannibal Travis, Of Blogs, Ebooks, and Broadband: Access to Digital Me-dia as a First Amendment Right, 35 HOFSTRA L. REV. 1519, 1566-69 (2007) (weighing the First Amendment against potential market abuse by large ISP providers discriminating against competitor’s content). 314 See Jerome A. Barron, Access to the Media - A Contemporary Appraisal, 35 HOFSTRA L. REV. 937, 953 (2007) (discussing the difficulty in regulating major ISP conglomeratesand discussing the relationship between the need for net neutrality and the old notion of access to the media). 315 See id. (outlining the reasons why ISPs resist active filtering).

316 See Case C-70/10, Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), 2011, archived at www.webcitation.org/6FSls4oZW (finding that active filtering not only hurts an ISP’s competitors but also the ISP’s customers). In Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL,, the Court attested that aside from constituting a disproportional restriction of the ISPs’ freedom to conduct a business, the “contested filtering system may also infringe the fun-damental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively” Id. at §50.


role voluntarily.317 To be clear, it is not about an absolute ban on managing information exchange online.318 Rather, it is the notion that entities closer to the middle, as opposed to entities closer to the end-points, should not be the ones doing this.319 In light of distinct capabilities of controlling traffic flow, net neutrality im-posed on ISPs can be set apart from search neutrality that some claim should be imposed on Google and other search engines.320

D. INTERMEDIARY CONCLUSIVE REMARKS My aim in this first part was to show that even in a country where constitutional and political traditions praise exclusively negative freedoms, government and courts have perceived the existence of a role of government in actively promoting the conditions neces-sary for free speech. This has been more or less apparent at dif-ferent times and in the policy for diverse media. I do not believe it has been a constant, majoritarian view of what First Amend-ment demands of government, I merely posit that this notion was there and was, on some occasions and in some contexts, control-ling.321 The other argument I developed was that these attempts at regu-lation that affirmatively sponsor freedom of expression have largely failed because of the technical aspects of the media in-volved. It was impossible to dissociate the macro-intervention from the micro-intervention: the decision to promote speech in a certain medium was inevitably connected with editorial decisions on the circumstances whereby such speech would be conveyed. This created unreasonable violations of the First Amendment

317 See Greg Sandoval, RIAA chief: ISPs to start policing copyright by July 1, Mar. 14, 2012 archived at www.webcitation.org/6FSmSgxh8 (introducing voluntary ISP anti-piracy program). 318 See id. (noting that the voluntary ISP anti-piracy program is not an absolute ban on the exchange of pirated information online). 319 See James Grimmelmann, Some Skepticism About Search Neutrality, in THE

NEXT DIGITAL DECADE: ESSAYS ON THE FUTURE OF THE INTERNET, 435, 449 (Berin Szoka and Adam Marcus eds., 2011) (arguing that search engine results should not be regulated and instead should be based entirely on relevance). 320See id. at 436-37 (discussing the difference between search engine neutrali-ty and net neutrality). 321 See supra Section 2, pp. 22-28 (discussing negative liberty).


rights of the platform owners, fundamentally undermining state action that aimed at promoting freedom of expression.322 There are two conclusions for this part of the paper that I draw from these two realizations. One is that the positive dimension of speech, the state’s role in fostering free communication, can be seen as a relevant element of a constitutional democracy. I am careful not to suggest that this is universal and plays out exactly the same in each and every nation. That would be unwise and trying to prove too much. Instead, my argument is that a political or constitutional decision to protect freedom of expression can be in harmony with a parallel choice to have the state achieve this through active performance. That both goals have been under-stood as complementing each other even in a fundamentally lib-eral, laissez-faire political community shows that they are com-patible. A vital issue is whether the country is a democracy and, more specifically, a complex democracy as described above. I be-lieve this is the case with many, but surely not all nations in the globe.323 The second conclusion is that policies and regulation that aim at promoting speech have faced serious difficulties with previous media due to characteristics that the internet does notshare with them. Because it allows broad reaching, asynchronous communi-cation that is not subject to scarcity on a fundamental level, the internet brings about ideal conditions for the pursuit of the state goal of enabling freedom of expression.324 For American constitutional law, this does not constitute a claim that courts must necessarily enforce a positive dimension of the First Amendment. I am not trying to make an all-or-nothing ar-gument. What it means is that for legal systems like the one in the United States, where the Constitution is understood not to require any affirmative state performance, the initiative of gov-

322 See supra Part C pp. 43-50 (detailing the macro-interventions and micro-interventions states may utilize when promoting speech). 323 See supra note 287 (identifying the political and cultural differences that make world-wide regulation of the internet difficult). 324 See supra Section C, pp. 18-42 (outlining the various regulations surround-ing non-Internet media).


ernment to voluntarily do it is nonetheless justified by the free speech clause. When the state chooses to promote free speech, this is not in and of itself invalid and thus an evaluation of the constitutionality of such a policy can only come as a result of bal-ancing the other constitutional rights involved. For legal systems where the constitution is understood as requir-ing government to sometimes act positively, this first part of the paper shows that enforcing a right to internet access is the best, most effective legal mechanism available to pursuing the value of empowering freedom of expression. What follows is a descrip-tion of how positive rights have been enforced in different legal systems and a normative description of the way in which the right to internet access can be protected by the Judiciary. II. THE JUDICIAL ENFORCEABILITY OF INTERNET ACCESS AS

A SOCIAL RIGHT The major goal of this second part is to show how the enforce-ment of a right to internet access is compatible with the judicial protection of social rights, a well-developed tradition by the ju-risprudence in a few countries. In so doing, I intend to make clear that digital inclusion policies constitute the main share of such positive governmental action even if an independent right to internet access is rejected and free speech is seen as the relevant, applicable right in this context.325 Also, I explain how the recog-nition of a state interest in actively implementing digital inclusion policies plays a decisive role even in a setting, as is that of Ameri-can constitutional law, where the Constitution only operates as a check on government action, but does not in any way mandate state positive action to protect individual rights.326

325 See Balkin, supra note 285, at 51-52 (arguing for a theory of digital free speech that has as its core values “interactivity, broad popular participation, equality of access to information and communications technology, promotion of democratic control in technological design, and the practical ability of ordi-nary people to route around, glom on, and transform.”). 326 See infra Part II.D. (discussing digital inclusion).


This study clearly intends to collaborate in the argument for the acknowledgment of an independent constitutional or human right to internet access, as opposed to the protection of internet access as a duty ancillary to the right to freedom of expression. Nevertheless, the denial of such argument does not have the ef-fect of rendering the propositions developed throughout the pa-per into moot points. If a right to internet access is excluded en-tirely, then the first part of this paper helps in making clear that freedom of expression has a positive dimension, not only a nega-tive one. It also shows how the positive dimension of free speech today comprises digital inclusion policies – getting individuals to the platform, with the adequate skills to communicate in it. The second part is then about the state interest in the promotion of free speech as a justification for the restriction of other rights – like the freedom to conduct a business – such that when a gov-ernment takes the initiative to enact digital inclusion policies it will not incur into an unconstitutional intervention. And lastly, in states where a constitution’s call for positive government action is judicially enforceable, the protection of this positive dimension of free speech is outlined in social rights jurisprudence.327 I am not claiming that the approach to these issues is the same regardless of whether one adopts freedom of expression or in-ternet access as the right being protected. I believe the contro-versies will be framed in a sharper way and the scope of the pro-tection afforded by courts will be better demarcated if one acknowledges that the right being protected is internet access it-self. But a less satisfactory solution is by no means a completely unacceptable one, of course. Basing the protection of digital in-clusion on free speech will still deliver a more adequate protec-tion of people’s needs than refuting the fact that an affirmative government action caters to the value of fostering communica-tion. A clarification is warranted before I move on. While the first part of this paper was focused on American law, the second part

327 See, e.g. Emerson supra, note 138, at 796, 826 (noting the Supreme Court’s reluctance to give affirmative effect to the First Amendment and the minimal structure it established to that end with respect to radio and television).


draws heavily from legal principles, rules, concepts and court rul-ings from different countries such as Germany, Brazil, Colombia, South Africa, France, India and Israel and from American state constitutional law. Admittedly, this type of comparative constitu-tional law analysis would profit from an in-depth knowledge about each of these legal systems and the political and cultural aspects in their background. Although useful, this is something that would render my argumentative aim unfeasible in the length of a paper such as this. What I am proposing here is not that the elements of social rights enforceability presented should be ef-fortlessly accepted as they are, without question. I do not assume constitutional law is more or less the same in these different countries: the recognition of the rich difference between the legal systems surveyed here and those of the readers is an elementary part of the dialogical approach to constitutional law that I use in this paper.328 I intend to expose this richness to critical review by lawyers, judges and policymakers from countries that are con-sidering constitutionally protecting internet access as a right.329 I do not intend to incite comparative “cherry-picking” nor the adoption of foreign legal practices based on authority. Whatever conclusion is made by readers on the usefulness of this second part of the paper should be arrived at with an eye on the content and merits of importing such concepts330 – an assessment only

328 “Dialogical interpretation proceeds by interrogating what a claim to consti-tutional difference actually means. Difference is an inherently relative concept; a constitution is only unique because it possesses some characteristic or fea-ture which other constitutions do not. Moreover, since difference is defined in comparative terms, it follows that a keener awareness and a better under-standing of difference can be achieved through a process of comparison. (…) By asking why foreign courts have reasoned a certain way, a court will ask it-self why it reasons the way it does” Sujit Choudhry, How To Do Comparative Constitutional Law in India: Naz Foundation, Same Sex Rights, and Dialogical Interpretation,in COMPARATIVE CONSTITUTIONALISM IN SOUTH ASIA (S. Khilnani et al. eds., 2010). 329 See infra Part II.A. (considering treating internet access a social right). 330 See Madhav Khosla, Inclusive Constitutional Comparison: Reflections on In-dia’s Sodomy Decision, 59 AM. J. COMP. L. 909, 930 (2011) (stating “[t]he rejec-tion of any approach would require the court to engage in substantive reason-ing about why one foreign source should be preferred over another, thereby ensuring that the reliance on foreign law would take place for content-dependent reasons. Therefore, counter-intuitively, increasing jurisdictions is more likely to reduce cherry-picking”).


the “importers” can make, as I believe that the convergence of constitutional law follows internally-defined conditions. In other words, “constitutions reflect deeper forces—technological, de-mographic, economic—and so constitutions converge across countries just when those other factors converge.”331 The contri-bution in this second part is thus potentially relevant (even if it does not include a substantial evaluation of the general national context in which the constitutional law of these countries is in-serted) because “[o]penness to the experiences in self-government of other political communities, for instance in the use of foreign law in constitutional interpretation, is part of the strategy for self-correction.”332

A. THE POSITIVE DIMENSION OF THE RIGHT TO INTERNET ACCESS AS A

JUSTIFICATION FOR GOVERNMENT AFFIRMATIVE ACTION

One of the roles that the protection of social rights as a constitu-tional level interest has played, in societies where government provides welfare services, is that of justifying restrictions on oth-er individual rights. Courts will often review a compromise made by public authorities where the creation or maintenance of a so-cial service has been achieved by imposing a constraint on the full enjoyment of a traditionally liberal right. Such constraint can only stand if the government interest in pursuing it is supported

331 See Rosalind Dixon & Eric A. Posner, The Limits of Constitutional Conver-gence, 11 CHI. J. INT’L L. 399, 402 (2011) (determining “constitutional conver-gence will take place only if the underlying factors that determine constitu-tional design themselves converge.”). 332 See Vlad Perju, Cosmopolitanism and Constitutional Self- Government, 8 INT’L

J. CONSTITUTIONAL LAW 326, 332 (2010) (“When constitutional claims are un-derstood as citizens’ own interpretations of constitutional provisions that as-pire to official status upon endorsement from courts as the institutions invest-ed with the authority to interpret the meaning of the constitutional text, then the heuristic appropriation of foreign constitutional practices enhances, rather than undermines, the democratic experience of a particular community to the extent it helps institutions to do justice to the claim presented by their own free and equal citizens. . . . I argue that the authority of foreign law in constitu-tional interpretation is grounded in the liberal constitutionalist commitment to freedom and equality”).


by another interest of constitutional hierarchy.333 The duty to ac-tively protect another constitutional right is one possible interest. Now, there are several ways this situation could play out in re-gard to digital inclusion policies. Government might decide to levy a tax in order to fund a subsidy for the less expensive broad-band access options available to citizens. Or it could opt to use public funds to provide for special capacity-building courses to members of minorities groups such that they are taught crucial internet use skill like web searching. The state could also impose a tax on software developers in order to support the coding of applications (for all platforms) that would make web browsing more accessible to handicapped people. One of the options adopted by many national and local govern-ments is to directly fund the construction of the physical support for high-speed broadband networks.334 That is to say, public au-thorities often observe the need to fill a gap in the roll out of next generation connectivity conduits in their communities or coun-

333 See María José Anón & Gerardo Pisarello, The Protection of Social Rights in the Spanish Constitutional System, JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS 78 (Fons Coomans ed., 2006) (discussing that in Spain, even though social rights are usually construed as not judicially enforceable, they act as “dis-charge clauses”. In Decision 89/1994 of the Spanish Constitutional Court, the constitutional protection of housing (art. 47), the duty to promote the condi-tions for social and economic development (art. 40(1)) and the subordination of the country’s wealth to the general interest (art. 128) were the justification that allowed the legislator to impose on the lessor of a flat a compulsory ex-tension, despite the restriction of property that this causes). 334 See International Telecommunications Union, MEASURING THE INFORMATION SOCIETY, at 13 archived at www.webcitation.org/6FYfzs5lv (continuously showing the Government’s awareness of the poor condition of next generation broadband by studies comparing the performance of different nations from the Organization for Economic Co-Operation and Development (OECD) and showing the United States have stagnated in the 17th place in an international ranking based on a criterion named “IDI” (ICT Development Index, which evaluates ICT access, ICT use and ICT skills) between 2008 and 2010); see also Berkman Center for Internet & Society, NEXT GENERATION CONNECTIVITY, ar-chived at www.webcitation.org/6FYgjwpAj (descibing the context in several countries that are ahead of the United States in terms of next generation con-nectivity and sometimes rely heavily on state action for the build-up and im-provement of the physical infrastructure).


tries.335 Because of the extremely high cost of the initial invest-ment and the risk that it will not pay itself in time or at all, pri-vate telecommunication companies are avoiding the deployment of fiber optics to each home.336 When a government decides to make it a policy goal to create this infrastructure and use its fi-nancial resources to this end, it will usually restrict individual rights in some way, either directly or indirectly. This is illustrated by the debate on the constitutionality of the Pa-tient Protection and Affordable Care Act in the United States: forcing people to contribute money specifically in order to sus-tain a system that provides a service deemed as essential to all raises constitutional rights issues.337 And just as the U.S. Su-preme Court was called upon to decide on a matter of public healthcare, it could be asked to weigh in on the issue of the con-stitutionality of public provisioning of broadband.338 Several municipal authorities in different American states have decided to fund the deployment of fiber, creating a network that would benefit every citizen: the available upstream and downstream speeds are well beyond those offered by any private provider.339 As they disrupt the scarcity-based confortable position of tele-com companies, cities begin to face legal challenges. The state of Missouri passed legislation that forbade its “political subdivi-sion[s to] provide or offer for sale . . . a telecommunications ser-vice or ... facility”.340 Although requested by the cities to preempt the Missouri state legislator, the FCC found it had no such author-

335 See ADAM CLAYTON POWELL III, Falling for the Gap: Whatever Happened to the Digital Divide?, THE DIGITAL DIVIDE: FACING A CRISIS OR CREATING A MYTH? 309 (Benjamin M. Compaine, ed., 2001) (finding the U.S. government claimed the digital divide was over because the prices of computers and internet access were falling and people who were notaccessing the internet were deemed to be simply not interested, not incapable). 336 See POWELL, supra note 335, at 309-14 (discussing reasons behind the lack of progress). 337 See POWELL, supra note 335, at 309-14 (drawing an analogy). 338 See POWELL, supra note 335, at 309-14 (continuing the analogy). 339 See RVA Market Research and Consulting, North American FTTH Status, at 5

(March 31, 2011), archived at www.webcitation.org/6FYiioY9Y (explaining services offered by different internet providers). 340 See MO. REV. STAT. § 392.410 (2013).


ity341 – even though it agreed that the legislation was against the goals set forth in the 1996 Telecommunications Act: ensuring ac-cess to reasonable services by people in rural and otherwise poorly-served areas.342 As the FCC’s decision was challenged in the Judiciary, the controversy found its way to the Supreme Court.343 Justice Souter wrote for the majority and, reversing the 8th Circuit’s ruling in favor of the cities, found that the FCC didn’t have the power to preempt a state when it decides to ban its mu-nicipal authorities from providing services such as broadband.344

341 See 47 U.S.C. § 253(a), (d) (2013) (reading “. . . no State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intra-state telecommunications service. . . . If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.”). 342 See 16 FCC Rcd. 1157, 1162 (2001) (stating “. . . we reiterate the Commis-sion's urging in the Texas Preemption Order that states refrain from enacting absolute prohibitions on the ability of municipal entities to provide telecom-munications service. The Commission has found that municipally-owned utili-ties and other utilities have the potential to become major competitors in the telecommunications industry. In particular, we believe that the entry of munic-ipally-owned utilities can further the goal of the 1996 Act to bring the benefits of competition to all Americans, particularly those who live in small or rural communities”). 343 See Nixon v. Mo. Mun. League, 541 U.S. 125, 140-41 (2004) (reversing FCC’s decision as to whether the class of entities authorized to provide telecommu-nication services includes the State's own subdivisions, so as to affect the power of States and localities to restrict their own (or their political inferiors') delivery of such services). 344 See id. at 144 (Stevens, J., dissenting) (explaining that the dissent disagrees with the majority opinion in that Congress was notclear in giving the FCC such prerogative and relied on the fact that at the time (1996) Congress gave the FCC the preemption powers it couldn’t have meant to protect the autonomy of municipal authorities in public provisioning because they simply didn’t pro-vide any services.) The dissent reminded the Court that “the question of mu-nicipal participation in local telephone markets was clearly brought to Congress' attention. In hearings on a predecessor bill, Congress heard from a representative of the American Public Power Association who described pub-lic utilities' unique potential to promote competition, particularly in small cit-ies, towns, and rural communities underserved by private companies”. See id.


The issue was thus framed as one of competences and rulemak-ing authority, not one of the merits of public provision of broad-band. On the merits, the majority agreed that Missouri’s ban wasn’t made in light of the public interest.345 The current trend in the United States is for state legislatures to fall under the influence of private telecom companies and thus create all sorts of obstacles for municipal broadband provision-ing, when they don’t ban it altogether like Missouri.346 However, it’s possible that a (local, state or federal)347 government initia-tive to develop broadband infrastructure be challenged in court. A balancing would then need to be struck between the interest in the promotion of free speech or of the right to internet access, on one side, and countervailing freedom rights, on the other.348

345 See id. at 138 (staing “[t]here is every reason to expect just the contrary, that legislative choices in this arena would reflect the intent behind the intense lobbying directed to those choices, manifestly intended to impede, not en-hance, competition”). 346 See Christopher Mitchell, Barriers to Municipal Networks, BROADBAND

COMMUNITIES, May/June, 2011, at 58-59, archived at www.webcitation.org/6FYnbcYT2 (highlighting how states made it difficult for communities to make building publicly owned networks). 347 See Lenert, supra note 109, at 122-123 (explaining that between the 1990’s and the early 2000’s, the U.S. government had adopted the Technology Oppor-tunities Program (TOP) and the Community Technology Centers (CTC)). Both these policies had the goal of enabling internet access in schools, libraries and other venues in underprivileged communities, channeling hundreds of mil-lions of dollars of investment. See also National Broadband Plan, FEDERAL

COMMUNICATIONS COMMISSION, at 147-151 , Apr. 1, 2013, archived at www.webcitation.org/6FYoxA3C4 (noting the possibility that the federal gov-ernment decides to accept some of the recommendations made in the National Broadband Plan and revamps its current digital inclusion policies by creating the “Connect America Fund”, shifting over 15 billion dollars (over the next few years) from another program into CAF and having Congress designate another few billion dollars per year to this initiative); Universal Service for Americans Act, S. 101, 110th Cong. §1 (2007) (providing a bill that would have updated and reinvigorated universal service provided under the Communications Act of 1934, had it passed). 348 See Berkman Center for Internet & Society, supra note 334, at 234-237 (de-scribing the new European guidelines in broadband infrastcture). A standard for evaluating the legitimacy of public investment in broadband networks was provided by a decision from the European Commission in 2009. Although it was issued in the context of ensuring fair competition between states in the


This shows how the positive dimension of a right to internet ac-cess can decisively affect the scrutiny of promotional policies ini-tiated by government but challenged as unconstitutional in courts. The other function of the acknowledgment of this affirm-ative action aspect of internet access is the possibility that the Ju-diciary determines there has been an unconstitutionality in the state’s omission to realize the right. The next portion of this pa-per is devoted to explaining when and how that would happen.

B. ON THE CONCEPT OF SOCIAL RIGHTS In this part of the paper my goal is a very specific one: to show how the enforcement of the positive dimension of free speech or the right to internet access fit the framework for social rights protection. I’m therefore concerned with the practice of social rights justiciability, not with their political or philosophical grounds. That is to say, my central argument is not that states should protect social rights or that they should provide Internet access to all their citizens. My point is that in those jurisdictions where courts exercise constitutional review of state omissions and not only of state action, the guidelines for protecting social rights can be used to enforce the positive dimension of either freedom of expression or an autonomous right to internet access. This can be used by courts to decide when and how a state should be mandated to fulfill elements of the positive dimension of these rights.

European Union, as opposed to a balancing of conflicting constitutional rights, the decision describes what is considered an adequate and reasonable public investment in broadband infrastructure. The acceptable investment scheme either mimics that which a private telecom company would pursue, projecting recovery of the value invested in a solid business plan; or it occurs in the pro-vision of a public good – a “service of general economic interest”. This latter kind of policy would be valid if focused on providing access in underserved ar-eas. It’s essential, in any event, that the proposed network is built and later maintained so as to remain open to any service provider – this forbids an ex-clusivity contract with a private company for exploiting the conduits once they are deployed by government. It also requires unbundling, ensuring that the investment results in a platform for free competition between ISPs. A publicly funded infrastructure is considered acceptable if the goal is to make next gen-eration broadband available in areas where there are already two companies offering speeds lower than 24Mbps.


Focusing on the positive dimension of the right to internet access is not meant to signal a lesser worth in safekeeping the negative liberty aspect of the right, but rather to respond to a seemingly more complex question of when and how states would be forced to provide free internet access to individuals. The pages that fol-low are an attempt at tackling the issue of how a social rights framework can be employed in the efforts to protect internet ac-cess in the realm of constitutional review. A cataloguing of rights as either freedom rights or performance rights doesn’t preclude the acknowledgement that both catego-ries of rights mandate the state to omit from acting and to posi-tively act, according to different situations. The view that I spouse admits that human and fundamental rights normally have one of these two possible dimensions – positive and negative – as predominant. However, it calls for acknowledging that all rights have the other, less predominant dimension, imbued in them as well.349 That is to say, even though an individual’s right to life has a predominant negative dimension in the prohibition that the state take her life, it also requires a positive performance by the state which commonly constitutes maintaining a police force to keep other individuals from murdering her350. If Internet access is understood as a right, it then results that it will sometimes con-stitute an individual subjective right in that the state withhold from censorship and from putting legal content offline and will also sometimes bind the state to fulfill positive duties. Several countries have enshrined in their founding document the notion that the state must provide services, not only omit from

349 See, e.g., ROBERT ALEXY, THEORIE DER GRUNDRECHTE (2nd ed, 1994), and INGO

W. SARLET, A EFICÁCIA DOS DIREITOS FUNDAMENTAIS (10th ed, 2010). 350 See STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY

DEPENDS ON TAXES, 35-36 (1999) (explaining all rights are positive); see also David Beatty, The Last Generation: When Rights Lose Their Meaning, HUMAN

RIGHTS AND JUDICIAL REVIEW: A COMPARATIVE PERSPECTIVE 321, 350 (showing why claims that “it would constitute a serious setback for the forces of democracy and the sovereignty of the people if judges ever did assume that, in addition to being guardians of the constitution, they held ultimate power over the purse”).


violating rights.351 Fundamental rights, in this sense, are protect-ed through the help of the state, not only against it.352 This is the underlying notion of a social state.353 Not a socialist state, but ra-ther a state that, while remaining true to the rule of law para-digm, also embeds the welfare characteristic in its being. Inter-net access is part of social elements in this type of state because it fundamentally complements sociability.354 When coupled with the rule of law principle, the social state principle brings to bear the notion that whatever is to be done by the state in terms of re-distribution and social regulation cannot bring a paralysis of in-dividual liberty355. This concept is identified with the motto “help

351See 2008 Syntagma [Syn.][Constitution] 5A (Greece) (providing for right to participate in information society and state obligation to ensure access); Fin-land makes broadband a ‘legal right,’ BBC NEWS (July 1, 2010, 3:01 PM), ar-chived at www.webcitation.org/6FaOGJbb3 (stating that from July 1, 2010 every Finn will have right to access 1 megabit per second broadband connec-tion ); see also PUBLIC INFORMATION ACT OF ESTONIA, (2000) (amended in 2003), archived at www.webcitation.org/6FaPvqYzC (ensuring opportunity to access public information through data communication network in public libraries by 2002). 352 See supra note 351 (giving examples where state’s affirmative action is re-quired to enforce individual rights). 353 See BLACK’S LAW DICTIONARY, 1537-38 (9th ed. 2009) (defining “social-service state” as “a state that uses its power to create laws and regulations to provide for the welfare of its citizens”). 354 Contra Black’s Law Dictionary, 1734 (9th ed. 2009) (defining “welfare state” as “a nation in which the government undertakes various social insurance programs, such as unemployment compensation, old-age persons, family al-lowances, food stamps, and aid to the blind or deaf”). The internet doesn’t in-crease sociability by itself, rather it sustains community ties by adding new channels of interaction. See Paul Dimaggio, Eszter Hargittai, W. Russell Neuman, & John P. Robinson, Social Implications of the Internet, 27 ANNUAL

REVIEW OF SOCIOLOGY, 307, 318, (stating research suggests “the Internet sus-tains the bonds of community by complementing, not replacing, other chan-nels of interaction”). This can be explained as a key role in social cohesion – in the interconnection of social networks and in the individual’s participation, (economic, physical and social) capacity and opportunity in society. See also THE IMPACT OF ICT ON SOCIAL COHESION: LOOKING BEYOND THE DIGITAL DIVIDE (Euro-pean Commission, Directorate-General for Joint Research Centre, Nov. 2004) at 5 (stating that one of the most important challenges to social cohesion will be assessing the role of ICT and addressing the divide between younger and older generations in terms of skills applicable to a “computerized economy”). 355 See HERMANN VON MANGOLDT, FRIEDRICH KLEIN & CHRISTIAN STARCK, KOMMENTAR

ZUM GRUNDGESETZ VOL. II, 52, 55 (6th ed. 2010) (describing how Germany exe-


for self-help”, one which arguably does not tread far from the American Constitution’s notion of “pursuit of happiness”.356 So-cial rights and their positive dimension are thus viewed as ena-blers for all, a notion that is certainly not foreign to the discussion of the networked-society357. Just as education is conceived as a tool for self-determination, so are a government’s efforts to en-sure that all individuals have internet access. This is a fundamen-tal guiding principle for the framework that will follow: the recognition that internet access is a social right.358

cuted this type of model doctrine); Peter Häberle, Wolfgang Martens & Otto Bachof, Grundrechte im Leistungsstaat, in VERÖFFENTLICHUNGEN DER VEREINIGUNG

DER DEUTSCHEN STAATSRECHTSLEHRER 30, 92 (1972) (proposing this issue not as one of freedom and social rights protected by the state, but rather of a common group of fundamental rights protected by the productive or performing state). 356 See Mangoldt, supra note 355, at 54 (describing the German model of the social state: the Sozialstaatsprinzip, or principle of the social state, expressed in article 20 of the 1949 German Basic Lawhas not been understood as a wel-fare state where the poor are given what they need to survive in society, but is interpreted as a mandate for an enabling state, where each and everyone is given the means to achieve their own survival and self-realization). 357 See Roger Blanpain, Social Rights in the European Union. Challenges and Op-portunities – looking for a new balance in the information society, in SOZIALE

GRUNDRECHTE IN DER EUROPÄISCHEN UNION 199, 225 (Bundesministerium für Arbeit und Sozialordnung, 2001) (arguing the information society has brought about the risk of a growing number of people being “marginalized and even excluded”); Daniel Bell, The Social Framework of the Information Society, in THE

INFORMATION SOCIETY VOL. I (Robin Mansell ed., 2009) (voicing concern about the welfare of workers whose profession did not involve information produc-tion or processing, thus evidencing the possibilities of social exclusion that lack of access to communication media would cause); Flis Henwood, Nod Mil-ler, Peter Senker & Sally Wyatt, A Dynamic Perspective on Technology, Econom-ic Inequality and Development, in TECHNOLOGY AND IN/EQUALITY: QUESTIONING THE

INFORMATION SOCIETY, 204-05 (2001) (stating“More extensive use of ICT in ser-vice industries may result in labour saving productivity gains and severe re-ductions in employment, as they have in manufacturing. . . . It seems likely that ICT-based innovations will require workers to have broader and higher levels of skill than in the past across a wide range of service industries in developed countries, and increasingly formal service quality standards are being articu-lated. . . . such trends raise questions about the accessibility of such work to less qualified people.”). 358 See Tricia Wang, Internet Access as a Social Right: Implications for Social Cit-izenship, THE FUTURE OF SOCIAL CITIZENSHIP: POLITICS, INSTITUTIONS AND OUTCOMES

ISA RESEARCH COMMITTEE ON POVERTY, SOCIAL WELFARE AND SOCIAL POLICY, RC19 at


Unfortunately, the idea of an enabler state that protects social rights is not popular in the United States. Despite a push for the protection of welfare rights under Franklin D. Roosevelt,359 American political and legal culture does not accept the notion that the Constitution requires the state to act affirmatively in the protection of some rights – with notable exceptions such as pub-lic education, social security and the right to counsel in criminal trials. This has not prevented legal scholars from admonishing the exclusively negative function of constitutional rights. Frank Michelman has argued that the 14th Amendment permits an in-terpretation of equal treatment that would call for a required minimum in state affirmative protection for people in situations of dire need.360 The existence of social security protection through statutes is hardly a proper guarantee. Charles Reich denounced decades ago the need to interpret social services as more than a mere gratuity offered by the state.361 In his view, the United States govern-

22 (Conference Paper), Sept. 4, 2008, .archived at www.webcitation.org/6FbitAogg (stating ”[w]hat I am suggesting is that since the U.S. already has a strong civil rights tradition in information rights and at one time in history communication was legislated as a social right, one way to ensure that our full range of civil rights are realized is to ensure the social right to the access of communication”). 359 See Cathy Albisa & Jessica Schultz, The United States, in SOCIAL RIGHTS

JURISPRUDENCE. EMERGING TRENDS IN INTERNATIONAL AND COMPARATIVE LAW 230, 230-34 (Malcolm Langford ed., 2008). 360 See Frank Michelman, On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 13 (1969) ( stating[I]f we define the inequality that way, we can hardly avoid admitting that the injury consists more essen-tially of deprivation than of discrimination, that the cure accordingly lies more in provision than in equalization, and that the reality of injury and. need for cure are to be determined largely without reference to whether the complain-ant's predicament is somehow visibly related to past or current governmental activity.) 361 See Charles A. Reich, Individual Rights and Social Welfare: The Emerging Le-gal Issues, 74 YALE L.J. 1245, 1245 (1964) (stating “The law of social welfare grew up on the theory that welfare is a "gratuity" furnished by the state, and thus may be made subject to whatever conditions the state sees fit to im-pose.”). He supports a notion of entitlements not very different from that of enforceable social rights:

The idea of entitlement is simply that when individuals have insufficient resources to live under conditions of health and


ment’s increased intromission into private matters has continu-ously forced individuals to choose between exercising their con-stitutional rights and guaranteeing their subsistence. Therefore, as “government largess” takes over more and more of the private sphere of influence, especially property, it must be acknowledged that what is given in return – especially welfare provisions – must have the status that property had362 as a safeguard against state arbitrary power: they must become a constitutional right, protected by due process,363 that allows the “. . . welfare state to achieve its goal of providing a secure minimum basis for individ-ual well-being and dignity in a society where each man cannot be wholly the master of his own destiny.”364 In Flemming v. Nestor,, however, the UnitedStates Supreme Court rejected the claim that the right to property could be construed to entail a guarantee of social benefits provisioning against the legislator.365

decency, society has obligations to provide support, and the individual is entitled to that support as of right. . . . The con-cept of entitlement attempts to meet these evils. It means ob-jective eligibility safeguards against revocation or loss of ben-efits, and it means that the individual's rights, whatever they may be, should be known to him and enforceable through law.

Id. at 1256. 362 See Charles A. Reich, The New Property, 73 YALE L.J. 733, 778 (1964). (stat-ing “If private property can no longer perform its protective functions, it will be necessary to establish institutions to carry on the work that private proper-ty once did but can no longer do. . . . It is necessary, then, that largess begin to do the work of property.”). 363 See id., at 785 (stating“Eventually those forms of largess which are closely linked to status must be deemed to be held as of right. Like property, such lar-gess could be governed by a system of regulation plus civil or criminal sanc-tions, rather than a system based upon denial, suspension and revocation. . . . The concept of right is most urgently needed with respect to benefits like un-employment compensation, public assistance, and old age insurance. These benefits are based upon a recognition that misfortune and deprivation are of-ten caused by forces far beyond the control of the individual, such as techno-logical change, variations in demand for goods, depressions, or wars. The aim of these benefits is to preserve the self-sufficiency of the individual.”) 364 See id. at 786. 365 See Flemming v. Nestor, 363 U.S. 603, 611 (1960) (concluding “that a per-son covered by the Act has not such a right in benefit payments as would make every defeasance of ‘accrued’ interests violative of the Due Process Clause of the Fifth Amendment.”). But see id. at 622 ( reasoning the patently flawed rea-


Furthermore, the Court has thus far refused to recognize that the Constitution in any way requires positive action by the state. The current landmark precedent is Deshaney v. Winnebago Cnty. Dept. of Soc. Serv., where the majority refused to acknowledge that the state had a duty to protect a minor from parental abuse.366 Judge Posner’s opinion in the Court of Appeals of the 7th Circuit famous-ly stated that “the Constitution is a charter of negative rather than positive liberties”.367 Whatever bars the acceptance by the Supreme Court of the view that the 14th Amendment and other provisions in the Constitution do contain requirements of positive state action, it is certainly not the literal text. In addition to the liberal political culture, another thing that acts as an obstacle to judicial enforcement of positive rights is the prevailing conception that constitutional rights only ever operate as subjective rights, and absolute rights at that.368 Balancing, although often referred to, is seldom acknowledged as the prime method for discovering the protective scope of a fun-

soning whereby “they simply tell the contributors to this insurance fund that despite their own and their employers' payments the Government, in paying the beneficiaries out of the fund, is merely giving them something for nothing and can stop doing so when it pleases. This, in my judgment, reveals a com-plete misunderstanding of the purpose Congress and the country had in pass-ing that law.”). 366 See Deshaney v. Winnebago Cnty. Dep’t. of Soc. Services, 489 U.S. 189, 191 (1989) (finding no duty to prevent child abuse even when a social worker knows of the situation and did not try and prevent it). 367 See Deshaney by First v. Winnebago Cnty. Dep’t. of Soc. Services, 812 F.2d 298,301 (7th Cir. 1987) aff'd sub nom. Deshaney v. Winnebago Cnty. Dep’t. of Soc. Services, 489 U.S. 189, 191 (1989) 368 See Frank Michelman, Socioeconomic rights in constitutional law: Explaining America away, 6 INT’L J. OF CONST. L. 663, 21 n.71 (2008) archived at www.webcitation.org/6FbqvNzC0 (conceding that, when he posits that judi-cial review and positive social rights are incompatible, he presupposes “that the choice is between total judicial abstinence and seriously intrusive judicial remedies.”); see also Mark Tushnet, Social Welfare Rights and the Forms of Ju-dicial Review, 82 TEX. L. REV. 1895, 1919 (2004) (explaining that “[i]n the Unit-ed States, social welfare rights are weak substantive rights because the con-ventional wisdom is that all rights must be enforced by strong remedies, which are inappropriate for social welfare rights.”).


damental right in a particular case.369 The principle of propor-tionality, seen elsewhere as an intrinsic element of constitutional adjudication, has never been popular in the U.S. Supreme Court. 370 If rights are understood as absolutes, as rules and not princi-ples, like so many scholars in the United States and abroad do371 and if the protection of constitutional rights is comprehended to be also absolute, either ensuing and leaving no democratic dis-cretion to Congress on how to protect them or simply not coming into play and leaving full discretion to Congress on whether to protect the rights at all, then indeed constitutional review of the positive dimension of rights is catastrophic.372 But then so too is that of the negative dimension of rights.373

369 See DAVID M. BEATTY, THE ULTIMATE RULE OF LAW 160 (2004) (arguing that proportionality is the best method to use when protecting an individual’s rights). 370 See id. at 162 (arguing that it is never the court’s role to substitute legisla-tive judgement in favor of their own). “[P]roportionality is certainly more neutral than any [other interpretative adjudication model].The caselaw we have encountered establishes the impartiality of the principle. . . .Proportionality is a universal criterion of constitutionality. It is an essential, unavoidable part of every constitutional text.” See id. Even though the U.S. Supreme Court Justices commonly refuse to explicitly adhere to this principle, it is considered a general principle of European Law, where it’s use by the Eu-ropean Court of Human Rights dates back to 1968 and the notion of propor-tionality has been embraced even in rulings where the principle wasn’t explic-itly mentioned. See John Joseph Cremona, The Proportionality Principle in the Jurisprudence of the European Court of Human Rights, in RECHT ZWISCHEN

UMBRUCH UND BEWAHRUNG-FESTSCHRIFT FUR RUDOLF BERN-HARDT 323 (Ulrich Beyerlin et al. eds., 1995). 371 See Stephen Gardbaum, Limiting Constitutional Rights, 54 UCLA L. REV. 789, 854 (2007) (stating that many scholars int the United States and abroad un-derstand rights as absolute). The deferential level of discretion admonished here for the review of social rights protection isn’t impracticable in the U.S., however it is an obstacle. See id. “The point of the power is to enhance the role of legislative judgment in rights analysis but without impinging on the ju-dicial function of saying what the law is.” Id. 372 See id. (arguing that the role of the court is to enhance legislative judgment through “rights analysis” and by sustaining the judicial fuction of interpreting the law). 373 See id. (weighing the costs and benefits of constitutional review of the posi-tive and negative dimension of individual rights).


There is no reason why American courts and especially the Su-preme Court must necessarily sponsor this.374 Several different levels of discretion can be awarded to courts in the exercise of the highly honored and democratically relevant role that is con-stitutional review.375 All that needs to be done is finding the ap-propriate level, which varies according to a country’s legal and constitutional as well as social and political culture. 376 And in-deed there are examples of courts mandating positive action by government in the United States: state courts.377 In a milestone article in 1977, Justice William J. Brennan Jr. advo-cated the importance of the role played by state courts in protect-ing the fundamental rights of American citizens.378 His claim was not that the U.S. Supreme Court did an unsatisfactory job of safe-keeping such rights; it was that state courts could provide even

374 See MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL

WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 111 (2008) (describing various ways Constitutional decisions are made outside of courtrooms). 375 See Tushnet, supra note 374, at 19 (discussing different levels of Constitu-tional review employed by courts). 376 See Tushnet supra note 374, at 19-24 (considering the costs and benefits of different levels of Constitutional review). Tushnet has done extensive work analyzing such possible models of constitutional review that would solve this problem. He argues that balance in the protection of negative and positive rights isn’t found in a system of strong judicial review like the American one. Rather, where the constitutional guarantees are resilient but the capacity of courts to enforce them is diminished the stability is more feasible. See id. See also, Stephen Gardbaum, Reassessing The New Commonwealth Model of Consti-tutionalism, 8 INT’L J. CONST. L. 167, 198-99 (2010) (observing that a country’s culture and political structure effect the success of a court’s level of Constitu-tional review). As an alternative to parliamentary sovereignty and strong ju-dicial review models, “[t]he new model promises to recalibrate these two ex-isting, more lopsided options by adequately and effectively protecting rights through a reallocation of power between the judiciary and the political branches.” Id. at 171. 377 See William J. Brennan Jr., State Constitutions and the Protection of Individu-al Rights 90 HARV. L. REV. 489, 491(1977) (acknowledging the fact that a court may order government action to protect an individual’s rights). 378 See Brennan, supra note 377, at 495 (noting that some State Surpreme Courts have found state constitutions to extend greater protection to citizens of that state beyond the rights guaranteed by the United States Constitution even in cases where the wording of the two Constitutions is identical).


better protection379 – regardless of the actual wording of the rights provisions.380 State constitutional law is a better arena for the enforcement of social rights for four different reasons. State constitutions have provisions on rights such as education, social security, healthcare and housing.381 State constitutional law does not completely lack a tradition in enforcing positive duties, like federal courts do.382 State courts have more flexibility in that they can issue rulings and adopt standards specially meant for one state alone, as op-posed to fifty.383 State judges are more democratically legitimate than federal judges to make decisions regarding the realization of social rights: they are often elected instead of appointed and their constitutional review decisions can still be overruled by a consti-tutional amendment.384

379See Brennan, supra note 377, at 495 (pointing out that States are in a posi-tion to guarantee more rights than what is afforded under the United States Constitution).

[T]he point I want to stress here is that state courts cannot rest when they have afforded their citizens the full protec-tions of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.

Id. at 491. 380See Brennan, supra note 377, at 500 (describing situations in which State courts and the United States Supreme Court have considered identical lan-guage and the State Supreme Courts have declined to follow the opinion of the United States Supreme Court). “[E]xamples abound where state courts have independently considered the merits of constitutional arguments and declined to follow opinions of the United States Supreme Court they find unconvincing, even where the state and federal constitutions are similarly or identically phrased.” Id. 381 See Brennan, supra note 377, at 500 (acknowledging a state’s right to inter-pret the states’ Constitution in a way that afford greater protection of individ-ual rights than what would be afforded under the United States Constitution). 382 See Brennan, supra note 377, at 491 (citing instances where the Federal government has struggled in affirmatively enforcing a Supreme Court ruling). 383 See Brennan, supra note 377, at 499 (pointing to states that have adopted standards within the state that differ from those adopted by the Federal gov-ernment). 384 See Burt Neuborne, State Constitutions and the Evolution of Positive Rights, 20 RUTGERS L.J. 881, 900 (1988) (expounding the benefits of States having


Due to the protection of social rights ensured by some state con-stitutions, state courts have shown that judicial review of such rights is not an absurd proposition in the American legal sys-tem.385 State courts have forced governments to fulfill positive obligations deriving from the protection of social rights, especial-ly the right to education.386 These rulings have been issued in the states of New York, Texas and Kentucky387. The right to housing and shelter for disadvantaged people has also motivated court decisions requiring positive action in New York and New Jer-sey.388 The New Jersey Constitution of 1947 was enacted in a his-torical time when “freedom from want” was high in the American political agenda.389 It contains a much more expansive set of guarantees than the Federal Constitution and has grounded rul-ings by the Supreme Court of New Jersey which enforce certain positive duties of the state government.390 Such rulings have shown that the rationality review standard used for the protection of negative rights against state action is inadequate for the review of state omission in implementing so-

democratically-elected judges as opposed to the judicial appointments for life .that occur on Federal courts). 385 See Neuborne, supra note 384, at 893-95 (giving multiple examples of State supreme courts protecting social rights not otherwise protected by the federal government). 386 See Albisa, supra note 359, at 240-243 (describing how social rights are protected). 387 See Albisa, supra note 359, at 240-243 (listing the governments that have

forced the protection of social rights). 388 See Albisa, supra note 364, at 243-245 (discussing the actions of the New

York and New Jersey governments). 389 See Stewart J. Pollock, State Constitutions as Separate Sources of Fundamen-tal Rights, 35 RUTGERS L. REV. 707, 722 (1983) (referring to the 1947 Constitu-tion adopted by New Jersey as “modern”). 390 See Pollock, supra note 389, at 714, 716, 719 (noting positive duties have been found as constitutionally mandated in cases of zoning ordinances that should help the poor). The author argues that state constitutional law has also offered citizens more protection of their negative rights than federal law – the examples come from cases involving free speech, illegal search and seizure and access to court proceedings, among others. See Pollock, supra note 389, at 714-19 (outlining the author’s argument).


cial rights.391 The test applied should not ask whether and how a right is burdened by the state, rather it should ascertain whether and how it has been furthered by state policy.392 The state court must entertain the question of whether the level of implementa-tion of the right is a reasonable advancement of the duty con-tained in the state constitution.393 This calls for the development of the content of such right by the courts, in order to compare it to the actual realization offered by the state government.394 In terms of American federal constitutional law, the criteria for enforcement of the positive dimension of a right to internet ac-cess or the right to free speech that I present in the following pages is possibly moot. Nonetheless, to the extent that American states have already protected positive rights enshrined in state constitutions and continue to do so, this part of the paper could be useful to state judges.

C. GREATER DISCRETION AWARDED TO THE LEGISLATOR When the concept of judicial constitutional review was first in-troduced it was unsurprisingly met with opposition based, above all, on the argument that if judges or Justices could trump legisla-tors, they would be taking for themselves the role of devising state policy. Today political theory explains constitutional re-view for the most part as a main pillar of a checks and balances system. Most people see the fact that it constitutes a limitation on what the Legislative branch can do as something natural in this context. And when the United States Supreme Court strikes down legislation that violates the First Amendment protection of free speech, it is undeniably influencing state policy. Constitu-tional review of a state’s duty to implement social rights also in-fluences policy, and it is only intuitive that, for those to whom

391 See Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 HARV. L. REV. 1131, 1137 (1999) (admonishing the use of rationality review in state welfare clauses). 392 See Hershkoff, supra note 391, at 1184 (dictating a stricter standard of re-view by placing the burden of proof on the state). 393 See Hershkoff, supra note 391, at 1184 (requiring states to show law fur-thers constitutional goal). 394 See Hershkoff, supra note 391, at 1184 (focusing analysis on the likelihood of achieving state’s policy interest).


that is a new thing, judicial oversight of social rights’ realization is an undue encroachment on the legislator’s prerogatives.395 It is important to emphasize that the role played by courts in en-forcing social rights is one of engaging in a dialogue with gov-ernment about policy and the protection of minorities against majoritarian interests, not one of having the last word.396 Con-cededly, because the universe of what must be positively done is infinitely harder to express in a constitutional disposition than those things that should not be done, constitutional norms are less precise on what they forbid than on what positive actions they demand. Therein lies the reason for the greater discretion awarded to the legislator in protecting social rights. The Legislative branch is entitled with much leeway in shaping state social policy, such that it is not for the courts to mandate government services, only to ascertain whether the policy in question is reasonable. Even when they do weigh in on social rights protection, constitutional courts such as those of Germa-

395 See CONOR GEARTY & VIRGINIA MANTOUVALOU, Against Judicial Enforcement, DEBATING SOCIAL RIGHTS 1 (2011) (criticizing a recent development in the pro-cess of making social rights justiciable in Europe – their adoption in the Char-ter of Fundamental Rights of the European Union by the Treaty of Lisbon (2009) – due to the uncertainty of how this will play out in the European Court of Justice or in national courts). 396 See Barry Friedman, The Will of the People and the Process of Constitutional Change, 78 GEO WASH. L. REV. 1232, 1238-39 (2011) (showing an example of constitutional review as counter-majoritarian); David Landau & Julián Daniel López-Murcia, Political Institutions and Judicial Role: An Approach in Context, The Case of The Colombian Constitutional Court, 119 VNIVERSITAS 55, 65 (2009) (showing in Columbia the Legislative branch and the political parties have never emerged as a leading, stable, power force in society making a dialogue impossible. “Whether such an approach to socio-economic rights enforcement would work in other institutional contexts is questionable. For example, in a country with a non-institutionalized party system, it would seem more-or-less impossible to adopt the South African approach to rights enforcement. The ‘di-alogical’ approach seems to depend, at a minimum, on the presence of coher-ent political actors who will be interested in and capable of developing the right . . .”); see also Kim Lane Scheppele, Constitutional Courts in the Field of Power Politics: A Realpolitik Defense of Social Rights, 82 TEX. L. REV. 1921, 1924 (2004) (describing in Hungary, “[t]he existence of strong, on point decisions by a domestic constitutional court makes it awkward as best for IFIs to insist on sharp cuts in social programs if such insistence means pushing a state to defy the decisions of its own courts”).


ny,397 Brazil,398 Colombia,399 France,400 and South Africa401 great-ly defer to the legislator on these matters, making it clear that the

397 See MANGOLDT, supra note 355, at 57 (discussing the scope of discretion); PETER BADURA, STAATSRECHT 90, 301 (3rd ed., 2003) (discussing the German courts’ position on the matter).

In Germany, where despite a constitutional provision adopt-ing the principle of the social state there are no explicitly rec-ognized fundamental social rights, the Federal Constitutional Court has manifested time and again its refusal to dictate how the German legislator should go about regulating the gov-ernment’s positive duties on social protection. In very few cases in its 60 years of adjudication has the Court ever man-dated the government to adopt positive performances of a so-cial character. This exception is made when the basic condi-tions for a dignified life are at stake, as I will discuss further on. Consequently, as a rule, social services can only be de-manded by individuals to the extent that they have been stip-ulated in statutes. The Basic Law protects social rights in the form of state duties, not subjective rights that can be individ-ually enforced. Therefore, the scope of discretion is ensured for the Legislative branch in the fulfillment of social duties set forth in the Basic Law: “Die Lösung dieses [juristisches] Prob-lem findet sich in der Doktrin von der politischen Gestaltungsfreiheit des Gesetzgebers angesichts der Unbestimmtheit und Unbestimmbarkeit der an veränderlichen Erfordernissen orientierten Staatsaufgaben und in der sozialen Einbindung der wirtschaftlichen Freiheit zur Sicherung der gerechten Wirtschafts- und Gesellschaftsordnung, insbes. durch den Schutz der Arbeit und ihres Ertrages.

Id. 398 See Sarlet, supra note 349, at 342 (discussing the Brazilian courts).

The Brazilian Constitution of 1988 enshrined several social rights – health, education and housing, among others. To this day the debate on whether they are endowed with the same protective status as freedom rights or if they can indeed be enforced by judicial review has not entirely subsided. How-ever, a majority of the doctrine bolsters the view – supported by the Federal Supreme Court in a few cases – that social rights are enforceable. And yet such stance is also character-ized by the plea for high discretion reserved for the legislator in its task of implementing constitutional social rights through legislation. Subjective rights derived directly from the social rights norms in the Constitution are considered possible, but only in very specific, exceptional cases.

See Sarlet, supra note 349, at 342.


399 See RODOLFO ARANGO, EL CONCEPTO DE DERECHOS SOCIALES FUNDAMENTALES 224-26 (2005) (discussing the Colombian courts).

In Colombia, another country whose constitution protects fundamental social rights explicitly, the right to education has been the subject of rulings deriving a subjective right from the respective constitutional provision. In light of its intimate ties with the right to the free development of personality, the right to education forbids the state from failing to secure pub-lic education – even to children geographically displaced in the context of internal armed conflicts.

Id. 400 See LAURENT PECH, France, SOCIAL RIGHTS JURISPRUDENCE - EMERGING TRENDS IN

INTERNATIONAL AND COMPARATIVE LAW, 267, 271-75 (Malcolm Langford ed., 2008) (discussing the French courts).

The French Constitutional Council expressly recognized, in a landmark decision in 1971, that freedom rights listed in the 1789 Declaration of the Rights of Man and of the Citizen and social rights in the preamble to the 1946 Constitution all bind the state – and therefore even social entitlements are judicial-ly enforceable. What followed was not full on judicial activ-ism: though there are some cases where social rights have been applied, courts are reluctant to make it the rule. Only two aspects of the efficacy of the social rights in the 1946 preamble are therefore imposed: as a justification for social legislation that restricts liberty rights and as grounds for in-validating social legislation that is considered to have an ex-ceedingly narrow protective scope.

Id.; see also LAURENCE GAY, LES “DROITS-CRÉANCES” CONSTITUTIONNELS 372-381 (2007) (discussing the “droits-créances”, as social rights are labeled in France, cannot be said to completely lack immediate applicability as a positive dimen-sion has been protected by the Constitutional Council through the finding of partial legislative omissions in the realization of the rights to health, labor and housing). 401 See SANDRA LIEBENBERG, SOCIO-ECONOMIC RIGHTS - ADJUDICATION UNDER

A TRANSFORMATIVE CONSTITUTION 146 (2010) (discussing the South Afri-can courts). The 1996 South African Constitution also included social rights in its catalogue – mainly rights to housing, healthcare, water, social security and education. The Constitutional Court’s attitude to-wards the judicial review of the realization of such rights by the state has likewise been restrained. Instead of using the same review stand-ard as for freedom rights, the Court developed a distinct test: it evalu-ates whether the state’s measures in realizing the positive dimension of such rights as healthcare and water are reasonable. A central as-pect of this kind of judicial review is the determination of what the content of such social rights is. Unless that is investigated, it remains


Judiciary must not overstep its function. To be sure, cases do ex-ist where judicially enforcing a social right required a court to ob-ligate the state to a specific action, when the existential minimum is involved, but such situations are considered by courts them-selves to be even more exceptional than the evaluation of gov-ernment’s social policy in the first place. This can be appraised as judicial activism in comparison to a context of no justiciability of social rights whatsoever. But it is arguably much more on the ju-dicial restraint pole if compared to the stringent review stand-ards applied by the United States Supreme Court on First Amendment cases, for example, or even to the application of the proportionality principle, as it is traditionally done by many Eu-ropean and Latin-American Supreme Courts in cases involving the restriction of negative rights. The constitution of the state of Alabama contains a provision on public education that was worded so that no subjective right to education could be derived from it.402 Despite a precedent from the 1960’s that denied any state obligation to provide public schools, the Alabama Circuit Court (Montgomery County) ex-pressly mandated the state, in 1993, to offer education services that adhered to a list of eight conditions or guiding principles. Upon consultation from the state Senate, the Supreme Court of

impossible to appropriately evaluate whether a state has done a rea-sonable job in protecting the right’s content. See Id. 402 See ALA. CONST. art. XIV, § 256.

Educational policy of state; authority of legislature to provide for orauthorize establishment and operation of schools by persons, municipalities, etc.; grant, donation, sale or lease of funds and property for educational purposes; election of cer-tain schools for attendance by parents of minors. – It is the policy of the state of Alabama to foster and promote the edu-cation of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student, but nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense, nor as limiting the authority and duty of the legislature, in furthering or providing for educa-tion, to require or impose conditions or procedures deemed necessary to the preservation of peace and order.

Id.


Alabama confirmed the ruling.403 The list of minimum conditions that the Circuit Court decided the state had a duty to meet in terms of education is very similar to a general plan404 – it does not afford a subjective right. This kind of judicial review, allow-ing more leeway to the legislator (than would otherwise be awarded if the issue were the restriction of a negative right), is perfectly in line with what national constitutional courts have done in other countries. Instead of mandating direct action, more often than not they will indicate the conditions that would satisfy the protection of the social right at issue and “remand” the case to the legislator.405

403 See Opinion of The Justices, 624 So. 2d 107, 110 (Ala. 1993) (confirming the

ruling of the Circuit Court). The executive and legislative branches of the State have broad powers and responsibilities in the area of public educa-tion, but the powers of each branch of government are bounded by the mandates and restraints of the constitution of the State of Alabama. . . . It is the province and duty of the ju-dicial branch of government to interpret the constitution and to say what the law is. . .

Id. 404 See id. at 107-08 (outlining the state’s guideline for the minimum education

requirements). 405 See Government of the Republic of South Africa v.Grootboom, 2000 (11) BCLR 1169 (CC) at 67-8. (S. Afr.) (holding the state hadn’t met the reasonable-ness standard in terms of the right to housing, because it failed to enact a pro-gram that would offer due protection to especially disadvantaged people in emergency situations like that of Mrs. Irene Grootboom). Mrs. Irene Grootboom and many others had left the slums where they lived in appalling conditions and settled down on vacant private property where low-cost hous-es would later be built. They were evicted after a court order and decided to seek a judicial ruling demanding that government provide them with minimal housing conditions. The Constitutional Court refused to find the state’s hous-ing program unreasonable because of a failure to provide many poor people with homes (Mrs. Grootboom had applied for housing seven years earlier and was still waiting), but conceded that the lack of quick relief for underprivileged people in specially delicate situations – after an eviction, for instance – was a violation of the Constitution’s provision on the right to housing. “The nation-wide housing programme falls short of obligation imposed upon national gov-ernment to the extent that it fails to recognize that the state must provide for relief for those in desperate need.” Id. at § 66. The ruling was met with the traditional criticism from social rights skeptics. Richard Epstein affirmed that not only did the Court overstep its boundary by making a decision with impact on the public budget, it would weaken liberty rights by protecting social rights


Whatever the approach taken by a jurisdiction on constitutional review in this field, the application of the standards will always account for the particular characteristics of the social right at stake. The right to internet access entails several different possi-ble public policies, as indicated throughout this portion of the pa-per. They include the build-up of high-speed connectivity infra-structure, establishment and maintenance of community telecenters, training of children and adults in information litera-cy, subsidization of computers and broadband internet access, among others. Even when this right is accepted as enforceable, the rule is that no court or judge can overrule a government’s choice of policy. Caveats such as the existential minimum and prohibition of retrogression, as seen below, exist as exceptions, not as the overall standard. Because courts cannot ordinarily mandate a specific implementa-tion of the right to internet access, whatever elements of proof can be produced that show government itself has a specific inter-pretation of a certain social right, or has produced or sanctioned information or benchmarks that indicate support of a particular social benefit, can be used to relieve courts from having to thread in unchartered territory. Rulings can be issued that provide in-terpretations of social rights consistently supported by govern-mental choices or release of public information406.

under a reasonableness standard: “Grootboom is blind to the source of the massive dislocation in South African housing markets, which lies outside the housing sphere…this exercise in democratic experimentalism may have bad spillover effects if it leads courts to rethink the strength of negative liberties guaranteed in the American and other constitutions.” See Richard A. Epstein, Classical Liberalism Meets the New Constitutional Order: A Comment on Mark Tushnet, 3 CHI. J. INT’L L. 455, 463-64 (2002). 406 See VÍCTOR ABRAMOVICH & CHRISTIAN COURTIS, LOS DERECHOS SOCIALES COMO

DERECHOS EXIGIBLES 132, 132-38 (2nd ed., 2004). An example of that is when the budgetary endowment for the expenses with a right like healthcare are se-cured by the Legislative power, but the government doesn’t allot any of it to support the delivery of a specific service (e.g. offering a type of drug in the public healthcare system). When a court is asked to force such allotment, even though it is going against governmental discretion, it isn’t ordering a provision the funding of which would cause a complex reallocation of the state’s re-sources. A distinction can thus be made between mandating positive perfor-mances for which direct financial support is already available and requiring


D. PROGRESSIVE IMPLEMENTATION

Social rights, as opposed to freedom rights, are seen as entitle-ments to an implementation that is not immediate, a protection that is intrinsically gradual. Excess on the part of the state, one that amounts to an undue restriction of the negative dimension of a constitutional right, is required to be corrected in one swoop – the invalidation of a norm or statute. This is a merely formal re-sult of removing it from the legal system and does not call on time or resources. Conversely, meeting the goals that the positive dimension of rights, and especially that of social rights, set to the state demands resources and a well-structured program, which certainly isn’t accomplished overnight. This justifies the framing of art. 2 of the 1966 International Cove-nant on Economic, Social and Cultural Rights, which makes pro-gressivity of implementation an identifying trace of social rights407, precisely because their positive dimension is predomi-nant. Under the Covenant, and according to the interpretation of the United Nations Committee on Economic, Social and Cultural Rights, states still have immediate duties despite the gradual im-plementation character of these rights.408 The first duty is one of non-discrimination: the protection of social rights, however slow-ly put in place, cannot come as more protective of some than of

the state to provide a service whose cost it has never planed for and possibly cannot bear. As with all allegations made by governments on the availability of resources for protecting social rights, this too must be subject to evaluation, especially in order to distinguish between hollow claims and adequately demonstrated facts. 407 See International Covenant on Economic, Social and Cultural Rights, Part II art. 2, Jan. 3, 1976, 993 U.N.T.S. 3 (stating “[e]ach State Party to the present Covenant undertakes to take steps, individually and through international as-sistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full reali-zation of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”). 408 See id. at Preamble. (laying out the duties each individual has to strive for the promotion and observance of the rights recognized in the Covenant).


others.409 Socially disadvantaged groups, above all, should not be discriminated – this duty operates in connection with equality and will be described in detail later.410 The second duty is to adopt measures such as establishing a legal framework, enabling the citizens’ access to information and providing effective proce-dural resources for access to justice.411 These measures can be comprehended as initial steps or accessory elements of the actual protection of a social right. Hence the general scope of social rights protection does not involve immediate implementation by states due to the progressivity attribute of these rights. Such characteristic has two implications. The first one is that it deters most of the push for justiciability, both in international law and in national constitutional law. The idea is that since the protection awarded by social rights comes in the fashion of gradual implementation in light of the resources available to government, insufficient levels of such realization cannot be subject to reprimand by international institutions like the Committee on Economic, Social and Cultural Rights or, inter-nally, by courts. The second implication is that progressive im-plementation works by constantly updating the standards for evaluation of how well the state has implemented the positive dimensions of rights. Not only do the upper and lower bounda-ries, but also the notion of what are reasonable measures to pro-tect a social right, become more demanding. The level of realiza-tion of the rights to health and education that would pass muster in the reasonableness standard today, in any country, will likely not remain the same after two decades. Several countries are currently launching or carrying out an in-frastructure policy aimed at building up a national communica-tions backbone that employs next generation connectivity.412

409 See id. at Article 2 (mandating that the rights enumerated in the Covenant will be exercised without discrimination of any kind). 410 See id. (prohibiting discrimination on the basis of social class). 411 See Abramovich, supra note 406, at 79-86 (outlining the different possible

measures). 412 See Yochai Benkler, Property, Commons, and the First Amendment: Towards a Core Common Infrastructure, WHITE PAPER FOR THE FIRST AMENDMENT PROGRAM

BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, archived at


The construction of a network capable of enabling ISPs to offer high speed broadband to a considerable share of a country’s pop-ulation is an element of the protection of the positive dimension of the right to internet access that illustrates very well the ap-plicability of the progressive implementation principle. On the one hand it requires a significant amount of resources, forcing a slow and gradual unfolding of the infrastructure. On the other hand, it presupposes that the technology for high-speed internet access is in constant evolution, turning the standards for compar-ison into constantly changing indices. Not only does it take many months and even years to rollout fiber to every home in a coun-try, it is also certain that today’s state-of-the-art bandwidth will at some point in the future be considered subpar. The fact that so many governments are taking such initiatives in-stead of trusting the market to provide the comprehensive wire line structure that studies indicate will be indispensable for any nation over the next decades is a testimony to both the perceived relevance of high speed access and the recognized role of the state in promoting such access.413 Progressive implementation implies an immediate state duty to devise the proper legal framework and to design the overall plan and technical aspects of a step-by-step construction of the infrastructure.414 Many gov-ernments have found their mission to be either laying out the fi-ber network themselves or heavily subsidizing investment of a private company – or pool of companies – that decides to en-

www.webcitation.org/6Fkv5RmUk (emphasizing that in order to protect free speech, “we must build a core common infrastructure that will allow commer-cial and noncommercial, professional and amateur, commodified and noncommodified, mainstream and fringe to interact in an environment that allows all to flourish and is biased in favor of none”). This should be accom-plished by two concurrent approaches, one of them being “public provisioning of the most basic infrastructure.” See id. at 9. 413 See Arnold Picot & Christian Wernick, The Role of Government in Broadband Access, 31 TELECOMM. POL’Y 660 (2007) (discussing the role of various govern-ments in promoting the development of high speed internet access). 414 See Infrastructurem NATIONAL BROADBAND PLAN: CONNECTING AMERICA, Apr. 9, 2013, archived at www.webcitation.org/6FkxLO6wr (listing the steps state and local governments may take to improve public network infrastructure).


deavor this work by itself.415 The more adequate choice is by no means one-size-fits-all: among other things, it will largely depend on the traditional and current telecommunications regulation en-vironment; on the nation’s dimensions and population distribu-tion; on the profile of the existing telecom companies; and on the level of economic development experienced by society.416 The complexity of economics and engineering involved in this type of policy does not preclude judicial oversight, but creates a setting of multiple possible approaches that cannot be objectively evaluated as right or wrong.417 This in turn warrants deference for the democratic autonomy exercised by the legislator and all but forbids courts from second-guessing the choices made by government in this scenario.418 But it doesn’t mean absence of judicial scrutiny.419 Despite the prerogative of progressive im-plementation, public authorities have several obligations as ex-

415 See Berkman Cent. for Internet & Society, supra note 334, at 200-11 (providing experiences of the Swiss and Dutch voluntary access models). The solution adopted in some countries and communities is to set up a joint ven-ture between public authorities and a group of companies interested in offer-ing broadband internet access. The cost of the passing fiber from municipal access points all the way to houses and buildings is then shared and the pipes are filled with several individual fiber cables. This allows multiple operators to provide competing services simultaneously over the same network. The switch board in each building is designed to permit customers to freely and easily contract and cease service with any of the companies, ensuring the con-ditions for actual competition. This kind of built-in unbundling makes for bet-ter results in achieving high speed, low latencies and low fee than behavioral regulation. 416 See Picot, supra note 413, at 671 (concluding that the best solution for pro-moting high speed internet access will vary from country to country based on the social and political climate). 417 See Picot, supra note 413, at 660-61 (outlining concerns and issues regard-ing the implementation national broadband). 418 See Eric Berger, In Search of a Theory of Deference: The Eighth Amendment, Democratic, Amendment, Democratic Pedigree and Constitutional Decision Mak-ing, 88 WASH. U. L. REV. 1, 11 (2010) (highlighting the use of jududical defer-ence to policy judgments or facting finding). 419 See Berger, supra note 418, at 11 (articulating judicial deference as inap-propriate when legislation is not well founded).


plained throughout this second part of the paper.420 As men-tioned before, if a court detects that government has completely failed in even setting up a plan for the implementation of the in-frastructure, it could issue a mandate that the responsible public authority proceed to do so within a certain deadline.421 The po-litical cost of this would be evidently high for public officials be-cause the mere risk of such a ruling exerts a pressure to institute a plan for broadband infrastructure build-up that the utter ab-sence of judicial enforcement would make very unlikely.422 How-ever, a court decision to this effect does not have to suggest what a plan would look like, thus preserving a decisive aspect of gov-ernment’s leeway in protecting the positive dimension of the right to internet access.423 The second reason why digital inclusion policies in general, and the development of infrastructure in particular, fall under the progressive implementation standard is that the social need is constantly evolving.424 What was considered an optimal realiza-tion of the right to internet access ten years ago425 is no longer acceptable today. The bandwidth and latency of internet access offerings improves constantly, allowing for innovative applica-tions to be made available on the internet, causing people to re-

420 See Picot, supra note 413, at 660-61 (introducing the details and responsi-bilities government must consider in implementing and regulating a national broadband). 421 See Picot, supra note 413, at 662 (discussing the role of government in broadband). 422 See Picot, supra note 413, at 669 (discussing the U.S. plan to further broad-band). 423 See Picot, supra note 413, at 663 (implying that regulatory agencies are re-sponsible for guaranteeing public-good issues such as broadband). 424 See Picot, supra note 413, at 664 (explaining development of infrastructure is difficult because of technology shifts and the emergence of new parallel in-dustries). 425 See Powell, supra note 335, at 326 (explaining that the Comapine conclusion is wrong because it looked at the popularization of internet access in America, largely due to the decreasing prices of personal computers and dial-up inter-net access, and proposed that in just a few years the gap between the desired internet penetration levels and the actual ones would be filled). The fact that a decade later the United States lags severely behind other developed countries in terms of next generation broadband offerings proves that Compaine’s con-clusion was premature. See Powell, supra note 335, at 326.


discover the capabilities of the internet wholly anew almost eve-ry couple of years.426 In 1998, one could have claimed that the current speeds were enough for web browsing and email ex-change and that good quality video could be accessed through cable.427 The revolutions caused by web 2.0 and Youtube empha-size the inherent flaw in such an argument on how much band-width is “enough”. Furthermore, the reason why the internet is the ultimate environment for amazing creativity and originality is that the conditions for innovation are always present – there’s no need to ask for authorization or to justify the need for such capa-bilities. As a matter of policy, bandwidth and latency need to be constantly improved in order to allow innovation to remain un-checked. It should be emphasized, however, that the standard by which improvements are measured is not a commercial one – this is about acknowledging the social value of innovation online, not about letting the market and inherent commercial interests be the ruler.428 Other elements of digital inclusion policies, like ca-pacity-building on internet skills, also call for constant revision and improvement as a result of the evolving aspect of the web.

E. SUBSIDIARITY The principle of subsidiarity is a key component of the social state notion of the “enabling state”. It also helps to adequately frame the justiciability of the positive dimension of social rights in constitutional systems that do not adopt the social state prin-

426 See Powell, supra note 335, at 326 (finding Compaine’s conclusion is wrong). 427 See See Powell, supra note 335, at 320 (acknowledging the increased speed on intel chips). 428 See Graham Murdock & Peter Golding, Information Poverty and Political In-equality: Citizenship in the Age of Privatized Communications, 39 J. COMMUNICATION 180, 180 (encouraging strong ongoing commodification of the internet should be avoided). Such commodification…

[I]nvolves moving the production and provision of communi-cations and information services from the public sector to the market, both by transferring ownership of key facilities to private investors and by making success in the marketplace the major criterion for judging the performance of all com-munications and information organizations.

Id.


ciple as it has been construed in German constitutional law.429 Subsidiarity permeates all digital inclusion policies and judicial enforceability of the right to internet access so as to call for state affirmative action only for those who cannot obtain internet ac-cess by themselves.430 The concept of subsidiarity employed in this context has roots in Ancient Greece, but a modern construction more similar to the one applicable in social rights theory can be traced back to 19th century Catholic doctrine. It informed the social and above all charity-oriented Rerum Novarum encyclical of 1891 and was giv-en its traditional configuration in the 1931’s Quadragesimo Anno encyclical.431 As a development of the acknowledged value of charity and of helping those in need, the subsidiarity principle’s social aspect dictates that people who cannot themselves provide their own subsistence must be awarded help from other people or institutions who are able to offer it. The reverse effect is that if someone is self-sustainable, other individuals and entities are not only relieved of having to assist, but are also forbidden to give unneeded support.432 The underlying thread of subsidiarity is the placement of the in-dividual at the center, as an inherent value.433 Individuality thus demands aid when it proves essential, so that self-determination is not impaired, and it also constrains aid when it proves exces-sive, because the ultimate goal is that each person be self-sufficient.434 This constraining, negative effect of the subsidiarity principle keeps socialism and extreme, disproportionate public

429 See Benjamin, supra note 89, at 763 (explaining the policy behind subsi-dized fees for rural areas). 430 See Berkman Cent. for Internet & Society, supra note 334, at 200-11 (show-ing how Dutch and Swiss provide a variety of options for internet access to everyone). 431 See OTFRIED HÖFFE, DEMOCRACY IN AN AGE OF GLOBALISATION 84 (D. Haubrich & M. Ludwig trans., 2007) (explaining the concept of Quadragesimo Anno encyc-lical). 432 See Stefan Gosepath, The Principle of Subsidiarity, in REAL WORLD JUSTICE, 157, 164 (A. Follesdal & T. Pogge eds., 2005) (articulating all of the aspects of the subsidiarity principle, from the perspective of the individual). 433 See id. (discussing the indiviudal’s role in subsidiarity). 434 See id. (describing each individual’s role as valuable).


social services at bay435. It also forbids state omissions that en-danger an individual’s capacity to self-sustain and determine its own dignity. This resonates with the right to internet access’ strong self-determination value. This latter effect seems to be in line with a legal notion of solidarity, but subsidiarity does not ac-count for all of the complexity of solidarity as an element of con-stitutional law.436 The principle of subsidiarity is very often associated with compe-tence-allocation, since it has been elevated to guiding rule of the distribution of prerogatives between nation states and the Euro-pean Union. The principle’s applicability in this field is the same: lower, smaller political entities need to perform all undertakings that they can – and no less. Higher, larger entities must execute those tasks that are beyond smaller entities’ reach – and no more. The core value is seen to lie with the smaller entities, in a parallel with individuals. As applied to social rights implementation, the subsidiarity prin-ciple therefore distinguishes between people that the state must help, because they ca not fulfill a specific basic need (associated with a social right) by themselves, and people who the state not only is not required to, but also should not assist, as they have the means for self-sustainability. Indeed, in Rodolfo Arango’s norma-tive concept of social rights, subsidiarity is part of the very exist-ence or material pre-conditions of a social right such that a legal subjective position only comes into place if a state fails to fulfill a basic human need that the individual cannot by herself satisfy.437 In Brazil, Ingo Sarlet argues that subsidiarity operates as an ele-ment of constitutional review such that a subjective right could only be derived from a constitutional social right norm if, among other things, the individual cannot achieve by herself the sought-

435 See Höffe, supra note 431, at 92. 436 See Erhard Denninger, Verfassungsrecht und Solidarität, 1 KRITISCHE

VIERTELJAHRESSCHRIFT FÜR GESETZGEBUNG UND RECHTSWISSENSCHAFT (1995) (dis-cussing Erhard Denninger argument). 437 See ARANGO, supra note 399, at 156-57 (discussing in Colombia social rights are protected, but the right to education does not allow the state to provide education to all children, specifically those outside areas of conflict).


after performance.438 As such, the acknowledgement of a subjec-tive right to internet access by a court – for example, in cases in-volving the existential minimum or material equality, as de-scribed below – would never accrue unless the petitioner is in an underprivileged position that prevents her from buying a com-puter and paying for regularly available ISP services, as well as seeking and funding her own information literacy training. The social state principle, carrying at its core the value of help for self-help, the progressive and gradual trait of social rights protec-tion and the subsidiarity principle all contribute to shaping a constitutional review framework that prevents excessive de-mands on the state, caps the Judiciary’s autonomy to influence public social policy and indicates the general direction to which courts should push governments in implementing the right to in-ternet access, all the while leaving the specific route still up to the legislator to choose. The subsidiarity principle has admittedly lower relevance in the field of the progressive implementation of next generation connectivity infrastructure, as this concerns a development that encompasses society as whole, not specific dis-advantaged groups or individuals. Nonetheless, subsidiarity con-tributes in a decisive way to answering the question of whether any citizen can ask courts to force government to provide free broadband.

F. EXISTENTIAL MINIMUM Merely a few years after the enactment of the 1949 Basic Law, the German Federal Administrative Court acknowledged the notion of an “existenzminimum”, an existential minimum. In a case de-cided in the 1950’s, the Court found that the social assistance leg-islation adopted by Germany two decades earlier was now in-compatible with the new social state paradigm set fourth in the Basic Law. Such legislation illustrated the prevailing conception of social security in that country during the time of its enactment: the poor needed to be aided in order to prevent extreme poverty that would fuel a raging proletarian mob which might destabilize

438 See SARLET, supra note 349, at 339 (discussing how subsidiarities operate in Brazil).


the state. At the behest of the Court, the German legislator creat-ed different social security legislation, built on the foundation of the individual’s inherent value and with the aim of securing min-imal standards of unemployment payments, healthcare and other services. This was in line with the social state principle and the recognition of every single person as a member of society entitled to his or her own rights439. The Federal Constitutional Court took up this interpretation of the Constitution a couple of decades later, strengthening the un-derstanding that the government can, in exceptional situations, be forced to take positive measures to protect social rights even in the absence of legislation to this effect. Therefore, the applica-tion of the constitutional dispositions on the social state principle and the human dignity authorize acknowledgement of a subjec-tive right to certain positive performances.440. Although it can be said that the Court has stood by the concept of the existential minimum ever since, only in the last twenty years has it issued rulings that better define this legal entitlement and its subjective right characteristic.441. In so doing, regardless of the constant reference to the social state principle, the Court finds better support in the human dignity guarantee and the principle of material equality.442 As a matter of fact, the social state provision has no interpretation subsidies such as legislative intent or historical conceptual substance.443. This proves that making the social state provision explicit in the constitution is not a definitive element of the acknowledgement of an existential minimum or of its content. It also goes to show that the existen-tial minimum, as a legal construct, should not be conceived as a

439 See Volker Neumann, Menschenwürde und Existenzminimum, NEUE

ZEITSCHRIFT FÜR VERWALTUNGSRECHT 427 (1995). 440 See ULRICH SARTORIUS, DAS EXISTENZMINIMUM IM RECHT 62 (2000). 441 See WALTER GEORG LEISNER, EXISTENZSICHERUNG IM ÖFFENTLICHEN RECHT 121 (2007) (discussing that only in the 1990’s did the legal institute of the existen-tial minimum rise to the center of the arguments in rulings by the Court). 442 See id. at 127 (finding a lack of arguments involving subsidies in the Court). 443 See id. at 152-54 (discussing there is no interpretation available to help courts in their rulings).


rule.444 Rather, it is only workable as a principle, the specific re-sults of which cannot be decoded from a general clause except in concrete cases and cannot be expressly listed in constitutional provisions.445 The protection of human dignity and material equality are argua-bly more relevant as grounds for the recognition of the existential minimum. Human dignity has been conceived as a fundamental constitutional clause that warrants against any possibility of dis-regarding an individual’s intrinsic value as a human being. This is not to be mistaken with a natural law justification for social rights. Rather, it is a legal norm that forbids reification both by means of excessive state intrusion – such as torture – and total governmental neglect – such as failing to provide even elemen-tary aspects of social security. In Brazil, where the Federal Su-preme Court has applied the existential minimum standard to identify situations where a subjective right to state performances can be derived directly from the constitutional social rights pro-visions, human dignity (expressly enshrined as one of the main values of the Constitution) is seen as the core of the existential minimum’s jurisprudential construct.446 The Court is somewhat erratic as regards explicit allusions to the notion of existential minimum, sometimes indicating it, other times merely hinting at it.447 Nevertheless, it has mandated the state to provide positive

444 See BADURA, supra note 397, at 302 (finding a greater flexibility secured to the legislator in defining what the existential minimum is than in the task of regulating fundamental rights). 445 See KLAUS STERN, DAS STAATSRECHT DER BUNDESREPUBLIK DEUTSCHLAND, 843 (1994). Had the framers of the German Basic Law decided to make the exis-tential minimum principle explicit, they would have refrained from character-izing it in detail. The same approach would be used as was for the acknowl-edgement that every fundamental freedom right has a “minimum core” that cannot be violated (art. 19, 2 of the German Basic Law). 446 See INGO W. SARLET, DIGNIDADE DA PESSOA HUMANA E DIREITOS FUNDAMENTAIS NA

CONSTITUIÇÃO FEDERAL DE 1988 110 (5th ed., 2007) (suggesting the positive dimesntion of human dignitiy requires not state restraint, but positive state action); ANA PAULA DE BARCELLOS, A EFICÁCIA JURÍDICA DOS PRINCÍPIOS

CONSTITUCIONAIS: O PRINCÍPIO DA DIGNIDADE DA PESSOA HUMANA 198 (2002). 447 See Mariana Filchtiner Figueiredo and Ingo W. Sarlet, Reserva do Possível, Mínimo Existencial e Direito à Saúde: Algumas Aproximações, 1 REVISTA DIREITOS

FUNDAMENTAIS & JUSTIÇA 171 (2007) (discussing social rights jurisprudence).


relief in situations where the implementation of a social right was seen as almost completely lacking, thus tracing the limits of the legislator’s discretion in the realization of such rights.448 The European Court of Human Rights has also forced states to take positive measures when the absence of such would violate human dignity.449 In Z et al. v. The United Kingdom,,the Court said that the state had violated Article 3 of the European Conven-tion on Human Rights by leaving in their original home for five years children that had abusive parents and were entrusted to Social Services.450 There they suffered from severe malnourish-ment and “appalling neglect”, until finally the state transferred them to a different house.451 . Even though it can be said that the Court’s threshold of human dignity violation is lower for children than it is for adults, this case marked a change in the Court and the European Commission’s understanding of Article 3’s effica-cy.452 The Court therefore understands that Article 3 protects against situations of great social need, provided such situations cause severe physical and psychological grievances that meet the threshold of dignity provided for in Article 3.453

448 See id. at 174 (investigating Brazilian social rights policies and implementa-tion). In the field of public healthcare, several rulings by lower courts, with a representative confirmation by the Supreme Court, have identified an existen-tial minimum associated with the protection of the right to health. It’s current-ly not wholly uncommon for a Brazilian appeals court to force a municipal, state or even the federal government to pay for expensive medication or surgi-cal procedures where such cannot be afforded by an individual and failure to provide could lead to the person’s death. See id. In one ruling the Court guaran-teed enrollment for children between the ages of 0 and 6 in elementary educa-tion facilities based on the right to education. See Ruling RE-AgR, 410.715-5 (Braz. 2005). 449 See, e.g., Case of Z and Others v. The United Kingdom, 29392/95 Eur. Ct. H.R., 34 (2001) (imposing sanctions on the British government for failure to remove children from abusive home). 450 See id. at 36 (holding unanimously that an Article 3 violation had occurred). 451 See id. at 11 (describing the factual background of the case). 452 See CORDULA DRÖGE, POSITIVE VERPFLICHTUNGEN DER STAATEN IN DER

EUROPÄISCHEN MENSCHENRECHTSKONVENTION 109-114 (2003) (discussing impact of case). 453 See id. (discussing the threshold requirements of Article 3).


Material equality is also seen as the purveyor of a minimal guar-antee of social rights.454 Under the notion of an enabling state, individuals must secure the means for their own subsistence and the development of their personality.455 This perspective of au-tonomy isn not merely formal, albeit not charity-oriented ei-ther.456 In order for each person to determine his or her dignity and live its life in the pursuit of his or her own self-defined sense of happiness, there must be starting grounds that enable such self-determination.457 One of the elements of the right to internet access that resonates with the notion of an existential minimum is information litera-cy.458 It is widely accepted that a broadband connection and a terminal do not suffice to allow people to freely use the internet: proper knowledge of a set of basic information skills serves as a fundamental enabler of access.459 The issue can be framed as one of human capabilities, rather than access.460 In the realm of edu-

454 See SARTORIUS, supra note 440, at 61-63 (describing relationship between the existential minimum and the right to equality). 455 See EURICO BITENCOURT NETO, O DIREITO AO MÍNIMO PARA UMA EXISTÊNCIA DIGNA 102-109 (2010) (articulating the relationship between democratic govern-ment and citizens). 456 See id. (discussing the purpose of state provided rights to facilitate citizens while also respecting their personal autonomy). 457 See id. (finding in Brazil the existential minimum has also been grounded on equality) In O Direito ao Mínimo para Uma Existência Digna, Eurico Bitencourt Neto points to equality as one of three main pillars (the other two being hu-man dignity and solidarity) and the existential minimum works as a source of material equality constituting the “guarantee of the possibilities for personal realization” (author’s translation). See id. (finding existential minimum creates equality among citizens). 458 See Wang, supra note 358, at 24 (arguing the social need not just for inter-net availability but also accessibility). Under the protective scope of a social right to internet access, “in the absence of meaningful social programs geared towards building and integrating online skills into daily activities, such as edu-cation or training programs, and practical considerations of usage require-ments, such as investments in technological hardware, availability of technol-ogy does not necessarily increase usage.” Wang, supra note 358, at 24. 459 See, e.g., Wang, supra note 358, at 24 (distinguishing “availability of infor-mation” from “access to information”). 460 See Ursula Maier-Rabler, Reconceptualizing e-policy: From bridging the digi-tal divide to closing the knowledge gap, in IDEOLOGIES OF THE INTERNET 196-197


cation, the concept of literacy has been revised to include aspects of training that are key in preparing children to exercise their role in a networked public sphere.461 Information literacy in-volves the capacity required of an internet user to find infor-mation online – often using search engines, to identify important issues amidst a huge amount of data and assess the relevance of such information in a context very different from that of print or broadcast mass media.462 Traditional literacy, such as the basic ability to read and under-stand text is not substituted – rather, it gains a new and even more relevant role in the group of capabilities that must be mas-tered in order for one to properly communicate online.463 How-ever, a critical stance on media and discourse, something that was already poised as necessary in the age of mass media, ac-quires a new meaning as internet users must acknowledge the different contexts in which information is presented online, and the purpose of the author’s message, in order to exercise citizen-ship.464 Information literacy can thus be understood as a primary

(Katharine Sarikakis and Daya Kishan Thussu, eds., 2006) (working with Amartya Sen’s concept of capabilities in the field of digital inclusion). 461 See Donald J. Leu et al., Toward a Theory of New Literacies Emerging From the Internet and Other Information and Communication Technologies, in THEORETICAL MODELS AND PROCESSES OF READING 1570-1613, 1590 (Norman J. Unrau and Robert B. Ruddell, eds., 2004) (noting that “new literacies . . . build on foundational literacies rather than replace them.”). 462 See id. (stating that “(n)ew literacies include the skills, strategies, and dis-position that allow us to use the Internet and other ICTs effectively to identify important questions, locate information, critically evaluate the usefulness of that information, synthesize information to answer those questions, and then communicate the answers to others.”). 463 See Douglas Kellner and Jeff Share, Toward Critical Media Literacy: Core Concepts, Debates, Organizations, and Policy, 26 DISCOURSE: STUD. CULTURAL POL. EDUC 369, 370 (2005) (stating “the current information/communication tech-nology environment traditional print literacy takes on increasing importance in the computer-mediated cyberworld as people need to critically scrutinize and scroll tremendous amounts of information, putting new emphasis on de-veloping reading and writing abilities.”). 464 See id. at 372-73.

Critical media literacy not only teaches students to learn from media, to resist media manipulation, and to use media mate-rials in constructive ways, but is also concerned with devel-


need related to the right to internet access. For the same reasons that education has been considered a social good without which people cannot adequately lead their lives in a society, information literacy constitutes the very basic capability whose lack preempts the utility of other aspects of the right to internet access such as broadband connection, computer availability and the use of community telecenters. Just as information literacy relates to digital citizenship, the idea that the exercise of political rights presupposes at the very least a minimum fulfillment of the right to education, among other rights, is fairly well accepted.465 Material equality therefore re-quires that these basic needs be covered by the state when and where the individual cannot placate them by itself or with the help of its family and friends. This, in turn, enables material equality and lays the necessary groundwork for the application of formal equality as protected by the existential minimum re-quirement. In this perspective, anyone is entitled to a minimum in social provisions or positive state performances not because dignity requires it, but because otherwise some would not be able to develop their autonomy and their subsistence in society like everyone else.466 In Germany, landmark rulings of the Fed-eral Constitutional Court have limited the state’s prerogative to tax, effectively shielding a core portion of people’s income in or-der to allow themselves to care for their existential minimum.467

oping skills that will help create good citizens and that will make individuals more motivated and competent participants in social life. Critical media literacy in our conception is tied to the project of radical democracy and concerned with de-veloping skills that will enhance democratization and partici-pation.

Id. 465 See, e.g., Wang, supra note 358 at 2 n.3 (discussing the association between political rights and the right to education). 466 See Neumann, supra note 439, at 428-429. 467 See Claudia Bittner, Human Dignity as a Matter of Legislative Consistency in an Ideal World: The Fundamental Right to Guarantee a Subsistence Minimum in the German Federal Constitutional Court’s Judgment of 9 February 2010, 12 GERMAN LAW JOURNAL 1941, at 1942, 2011, archived at www.webcitation.org/6FvXmoe8T (reporting the German Federal Constitu-


This negative dimension of the principle makes evident the un-derlying enabling motif468 – even when the existential minimum’s protection entails positive action by the state, it functions as help for self-help, not as charity. In sum, it can be said that in some countries, courts conduct con-stitutional review of social rights so as to reserve the legislator broad leeway to determine the fashion and extent to which social rights, specially their positive dimension, are implemented. Ex-ceptionally, when the state fails to provide certain fundamental needs, a core part of human subsistence is seen to be violated, thus resulting in rulings that mandate positive measures which will secure people’s existential minimum. The central issue then is: what needs make up the existential minimum?469 This is, by far, not a simple issue and even the question itself could be framed in different, legitimate ways. One is to ask what are the human needs that compose such minimum core of social rights (as it has been referred to in international human rights law). Another one is to ask what are the minimal state affirma-tive obligations that derive from such individual entitlement470. The focus on the minimal standard, rather than on adequate or appropriate levels of rights implementation, is not aimed at nar-

tional Court’s decision to impose an obligation on states to provide for mini-mum living conditions in the field of tax law). 468 See Leisner, supra note 441, at 128-129 (illustrating the underlying ena-bling motif). That is why the existential minimum is to be defined by freedom rights criteria, not by social policy ones. See Leisner, supra note 441 at 163. 469 See Michelman, supra note 360, at 57 (arguing that the 14th Amendment to the U.S. Constitution ensures the protection of such a minimum in terms of so-cial security). “But this "advantage" of the minimum protection hypothesis (if we would so regard it) remains utterly theoretical until (if ever) we can devel-op a "justiciable" standard for specifying the acceptable minimum and the ac-ceptable gap. Absent such standards, the supposed duty of minimum-protection cannot be directly enforced; in fact, its violation cannot even be co-herently alleged.” Michelman, supra note 360, at 57. 470 See Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 YALE J. INT'L L. 113, 165 (2008) (stating “. . . in-stead of demarcating different rights and obligations as ‘core’ and ‘non-core,’ the Committee and the courts are better equipped to supervise and enforce the (predominantly) positive obligations attached to economic and social rights by using indicators and benchmarks . . .”).


rowing the protection awarded by social rights – even if that could be an inadvertent end result.471 Rather, it is about discern-ing, in a continuum of social rights realization, a small section represented by human necessities of utmost relevance that call for straightforward state action, such that for this section alone there is an exception to the very deferential standard of review where the legislator is given full discretion in protecting social rights.472 Such section, in the scope of the protection of the right to internet access, is arguably information literacy. Again, this does not immediately lead to a universal subjective entitlement to training in information technology skills. It seems that availing what the existential minimum is, in each case, re-quires asking both what the basic individual need is and what the state can be required to do. In many countries, such as India, the limited jurisprudence on enforcing the positive dimension of rights has been developed under the right to life.473 In addition, because the concept of existential minimum points to elementary needs, it is very commonly associated with vital, biological re-quirements of human life. In Colombia, the Constitutional Court recognized a subjective right to healthcare service (eye surgery) by a very poor person who otherwise would not have been able to get the necessary treatment and would have gone blind.474

471 See id. at 127 (recognizing the essence of the minimal standard approach is to narrow the base point of the rights). 472 See Grootboom, supra note 405 at 25 (evaluating the reasonableness of a welfare policy by taking a minimum core of provisioning into account). This is even harder to deny when one looks at the comments made by one of the Con-stitutional Court of South Africa’s members, Albie Sachs, while the ruling in Grootboom was being prepared: “We defend deep core values which are part of world jurisprudence and part of the evolving constitutional traditions of our country. . . . The difficulty, however, is to distinguish between the special cases which deal with these deep values, and the ordinary issues of deciding how to allocate resources among many worthy claimants. . . . Where we do have a voice is when situations of homelessness go to the core of a person’s life and dignity.” See Albie Sachs, Social and Economic Rights: Can They Be Made Justici-able? 53 SMU L. REV. 1381, 1388 (2000). 473 See LIEBENBERG, supra note 401, at 135. 474 See Corte Constitucional [C.C] [Constitutional Court], octubre 11, 2001, Sentencia T-1081/01 (finding an elderly man was entitled to eye surgery that he could not afford).


The normative argumentation was systematic, anchored in dis-positions of the Constitution of Colombia such as the right to health475, right to social security476, to nourishment477, the direct applicability of constitutional norms478 and the special protection awarded to people in need479. The ruling mentioned that the state might even ask for a refund of the treatment costs to the family afterwards, if they had the means to pay, but in any event was forced to support the medical treatment for free right away.480 The Court stated there was a subjective right in particu-lar in situations where a vital minimum was in question481.

475 See CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] art. 49. (providing the right to health care). 476 See CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] art. 46 (guaranteeing assis-tance to the elederly); see also CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] art. 48 (providing for social security coverage for all). 477 See CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] art. 46 (assuring food will be provided to indigents). 478 See CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] art. 85 (requiring the rights en-shrined in the Constitution to be immediately carried out). 479 See CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] art. 13 (stating that measures in favor of marginalized or discriminated people should be adopted to pro-mote equality). 480 See Corte Constitucional [C.C] [Constitutional Court], octubre 11, 2001, Sentencia T-1081/01 (requiring the surgery to be carried out immediately but stating the money should be repaid in the event the plaintiff comes into the money to afford it). 481 See Corte Constitucional [C.C] [Constitutional Court], octubre 11, 2001, Sentencia T-1081/01 (finding that everyone is entitled to a certain minimum level of health care); see also, ARANGO, supra note 399, at 171-74. His systema-tization of the Court’s argumentation deserves to be reproduced here in full:

“[T]he state must decide how to distribute resources in socie-ty (establishing legal social performances in favor of people); 1) in principle, the right to health isn’t individually enforcea-ble against the state unless the legislator has made it so; 2) but when a) the person is found to be in a situation of need such that his or her fundamental rights are urgently threat-ened, and b) the legislator hasn’t taken the measures re-quired to remedy such situations, and c) the state’s positive performance can avoid such situation, and d) its omission, on the other hand, is enough to cause the realization of this un-just damage to the person; 3) Then the individual has a prima facie fundamental right to a factual positive action by the state.”

Id. at 173-74 (author’s translation).


A vital minimum is thus sometimes advanced that encompasses the right to life and physiological health, but nothing else.482 Alt-hough such elements of the guarantee are evidently essential, they cannot be the sole protection enabled by this legal figure.483 Much to the contrary, a majority of commentators emphasizes the richness of the existential minimum, arguing that it entails protective aspects beyond the biological ones.484 Vital in this sense is to be interpreted as that which is physiologically and psychologically, morally vital.485 That is why basic education and internet access, for instance, must not be prima facie excluded from the group of primary needs formed by the existential mini-mum.486 It seems clear that the existential minimum is not a rule provid-ing guidance in the abstract as to specifically which kinds of de-mands can be made on a government.487 On the contrary, it is structured and applied as a principle, so that only as a result of examining the concrete aspects of a case – in other words, know-ing who the individual is and in what context she is inserted –can a court determine what comprises the existential minimum.488 Naturally, the basic human needs vary according to different na-tions: what a court might consider as essential to one’s existence in a society in Finland is not necessarily seen as indispensable in Brazil.

482 See ARANGO, supra note 399, at 171-74 (illustrating the a state’s minimum duty to provide citizens’ fundamental rights to health when possible through positive action). 483 See Young, supra 470, at 130 (providing “basic needs” as too narrow inter-pretation of social and economic rights). 484 See Young, supra 470, at 129-30 (finding minimum core and basic needs fo-cus on one’s right to survival as necessary to exercise additional social rights). 485 See BRITTA KÖNEMANN, DER VERFASSUNGSUNMITTELBARE ANSPRUCH AUF DAS

EXISTENZMINIMUM: ZUM EINFLUSS VON MENSCHENWÜRDE UND SOZIALSTAATSPRINZIP

AUF DIE SOZIALHILFE 91 (2005) (articulating the existential minimum can hence be described also as social-cultural). 486 See Internet Access is a Fundamental Right, supra note 3 (acknowledging in-ternet access as a fundamental human right). 487 See NETO, supra note 455, at 119-21 (advocating existential minimum lacks a substantive definition). 488 See id., at 119-21 (requiring factual analysis on case by case basis to de-termine if existential minimum is present).


The acknowledgement of a subjective right deriving from the minimum core of social rights is as a result questioned due to its inherent relativity.489 I do not believe that such relativity poses an insurmountable obstacle to its adoption as a key principle in the justiciability of the positive dimension of constitutional rights, especially of social ones. Rights norms themselves cannot work as rules and have built-in relativity. It is the doctrinal and jurisprudential efforts in this field of constitutional review that offer some guidance in dealing with such relativity, albeit keeping the norm open-ended. One of the ways by which the existential minimum contributes to adjudication is countering budgetary claims by public authorities. Outside of the realm of such basic needs, the legislator has wide discretion and does not need to jus-tify itself to courts. However, once legal positions covered by the existential minimum are violated by a state omission, the burden of proof shifts to the state. In some legal systems this is fatal: no justification is seen to allow this level of violation. In others, the government can attempt to prove – i.e. with extensive evidence and not mere allegations – that it was impossible to protect even the existential minimum due to utter lack of financial resources. If internet access is recognized as a constitutional right, there is a possibility that a court, in a country where social rights are en-forceable, would in a certain scenario find that a petitioner’s exis-tential minimum has been violated as a result of a complete una-vailability of information literacy training. This presupposes, of course, a kind of society where to remain completely offline is the same as being an outcast. Clearly, as was indicated before, the ex-istential minimum is not a clean-cut rule such that the provisions necessary to satisfy it in one country are not the same as in an-other. Whereas in Brazil and South Africa internet access cannot be yet said to pertain to such a core group of human needs, the answer as regards Finland or Estonia is murkier.

489 See Young, supra 470, at 131 (stating“Of course, the existence of a range of disagreement around the line drawn can still deliver a nominate standard which may allow for a context-sensitive adjustment in particular cases with little precedential importance. Yet this concession takes us outside of the realm of the minimum core, understood as the content of a legal right, and into the more flexible arena of setting standards and devising benchmarks.”).


A violation of the existential minimum could be said to exist where a person is helpless to provide for herself and the state has failed to implement the most elementary form of information lit-eracy training. Studies abound on what such preparation entails. Part of such policies is undoubtedly the coaching of teachers and instructors to capacitate them in providing ICT education to oth-ers.490 Another aspect is the build-up of infrastructure that con-nects at least schools and instruction centers or telecenters to the internet with high speed.491 Training for internet skills should not be neutral, it has to ensure people will acquire a notion of what information is and the role it plays in a networked socie-ty.492 While it is vital that information literacy be included in the basic school curriculum, adults in rural areas and from under-privileged groups must be given special attention.493 Further-more, merely adding this item to the curriculum will not produce decisive effects unless it is also included in the regional and na-tional education assessments.494 Children and adults have to be dispensed education for the core activities related to information search, information identification and information exchange online.495 A reasonable public policy must not rely entirely on in-ternet- or television-mediated training because the close over-

490 See Kellner & Share, supra note 463, at 379 (arguing that “[a] big challenge for media literacy in the USA is thus to enter into teacher training programmes and departments of education.”). 491 See Michel J. Menou, Information Literacy in National Information and Com-munications Technology (ICT) policies: The Missed Dimension, Information Cul-ture, 5, July 2002, archived at www.webcitation.org/6FwxbnqSO (suggesting policies connecting schools to high speed internet have been proposed). 492 See Menou, supra note 491, at 11(discussing “Information literacy cannot be restricted to learning how to find and use information under whatever form, and possibly how to produce some basic information-as-objects. It has to deal with the very concept of information and its functions in human socie-ties.”). 493 See Menou, supra note 491, at 5 (suggesting the targeting groups need to expand further than just students). 494 See Leu, supra note 461, at 1606 (noting these changes are only implement-ed on one level). 495 See Menou, supra note 491, at 11 (teaching everyone information literacy deals with the basic concepts of information and evolving fucntions in human societies).


sight of the instructors, with a personal and tailored relationship, is fundamental.496 The existential minimum also plays a part in the application of another crucial principle of constitutional review of social rights: the prohibition of retrogression.

G. PROHIBITION OF RETROGRESSION Whatever protection of social rights flows from the constitution, the legislator is still entitled great freedom to decide when and how such protection is to unfold. When it makes decisions of this type and enacts legislation containing specific state duties to pro-vide services in the area of healthcare, education, housing and others, it reduces its own discretion. That is because the notion of progressive implementation is interpreted as having a ratchet effect: once a certain level of implementation is freely adhered to by the Legislative power, the Judiciary can protect people against retrogressive measures that would detract from such level. This is not understood as an outright ban, however. The prohibition of retrogression creates a hurdle that govern-ments must face when deciding to lower the quality or scope of social rights services. But the nature of this guarantee is a civil-political one: legal trust and stability, the basis for due process clauses dating back to the 1215 Magna Charta. A government cannot harm legitimate expectations related to one’s liberty and property, requiring it thus to subject its will to procedural safe-ties that shield citizens from arbitrary restrictions on fundamen-tal freedom rights. The same rationale applies to social rights and the positive measures gradually assumed by states to further protect them. People create expectations on the maintenance of social services like public education just as much as they do on the endurance of legal guarantees that prevent their property from being capriciously taken away from them.497 The progres-

496 See Menou, supra note 491, at 14 (acknowledging self-teaching is a good as-set, but human intervention is necessary). 497 See Reich, supra note 361 at 1245 (arguing social services are more than a gratuity offered by the state).


sive implementation characteristic of social rights means that re-alization can only push further, not backwards.498 The legislator sets the pace and selects the way, but it cannot turn back. 499 Again, the respect for the decisions of the democratically ac-countable representatives translates into the application of the prohibition of retrogression as a shift in the burden of proof, not as a simple judicial veto. If a complaint is made that the overall positive protection of a social guarantee has been lowered or narrowed, a court must evaluate such claim. From a finding that this allegation is well founded follows a requirement that the state justify such retrogression. At this point there are consid-ered to be three required elements of a successful justification. This standard applies in countries that have ratified the American Convention on Human Rights and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”).500 Firstly, the authorities must show that before such retrogressive measures were taken, all alternative means to achieve the gov-ernmental interest sought were carefully considered. Second, they have to demonstrate that despite having made matters less favorable in regards to a specific social right, a holistic, general view paints a picture of an improvement in the implementation of social rights as a whole. Third, it has to be proven that the re-sources available to the state, including those from foreign aid, were so scarce that the social service that has been cutback or narrowed in scope could not have remained intact. In any event, when the contested retreat in the realization of rights imposes

498 See Reich, supra note 361 at 1256 (urging for a new approach that requires more participation). 499 See Reich, supra note 361 at 1256 (noting the statutes and administrative regulations may harming some, but the legislators still need to keep progress-ing). 500 See CHRISTIAN COURTIS, La Prohibición De Regressividad En Material De Derechos Sociales: Apuntes Introductorios, in NI UN PASO ATRÁS 15 (Christian Courtis ed., 2006) (noting the Convention and Protocol provisions on progres-sive implementation that support the principle of prohibition of retrogression are very similar to that of the United Nations Covenant mentioned previously and seem to offer the same protective scope).


the loss of a measure or service that fulfilled one of the basic needs comprised by the existential minimum, there is seen to be no possible justification. The retrogressive measure is then un-constitutional.501 In Spain, where the 1978 Constitution expressly espoused the so-cial state principle but did not award social rights the same pro-tective status as freedom rights, the prohibition of retrogression also operates as a deterrent of legislation that would diminish the realization of a social right to the point where the existential min-imum is affected.502 In addition, the principle requires the appli-cation of controls of reasonableness and proportionality in legis-lation with social content.503 There is a burden on the government to justify retrogression on social policies, and in la-bor matters the Court has indicated that prima facie retrogressive measures must have their reasonableness justified.504 In Argen-tina, the regulation of fundamental rights must survive a consti-tutional review standard of reasonability. Legislation which is considered to incur in a decrease in the levels of protection ena-bled by a social right is found to be unreasonable. It can then on-ly pass muster if the same criteria are met as is required of legis-lation that discriminates against a disadvantaged group. The proposed test is similar to the U.S. Supreme Court’s strict scrutiny standard.505

501 See COURTIS, supra note 500 at 29-42 (noting in Brazil the principle only calls for balancing when the existential minimum is met, keeping the legisla-tor’s discretion otherwise immune); SARLET, supra note 349, at 450-59 (pon-dering the people’s legitimate expectation on the one hand and the relevance of the state interest that called for the retrogressive measure).. 502 See Anón & Pisarello, supra note 333, at 67-74 (discussing how Spain does not consider social rights and freedom rights as equal). 503 See Anón & Pisarello, supra note 333, at 79-80 (explaining the straight pro-hibition of retrogression operates through the definition of a minimum essen-tial content and the control of reasonableness and proportionality exercised). 504 See Anón & Pisarello, supra note 333, at 80-81 (suggesting the state should justify the reasonableness of prima facie retrogressive measures). 505 See ABRAMOVICH & COURTIS, supra note 406, at 93-108; see also Cámara Fed-eral de Apelaciones [CFed.] [Federal Courts of Appeals], 02/06/1998, “VICECONTE, MARIELA C. ESTADO NACIONAL,” (1998). A suit was filed in order to seek remedy for poor people in Argentina’s pampa region, where an endemic, life-threatening disease called for a vaccine. Because the disease isn’t found


There are several elements of the right to internet access’ realiza-tion by government that could be safeguarded by the prohibition of retrogression. The development of next generation connectivi-ty infrastructure and the establishment of information literacy policies are good examples. As a state-enabled offering whose removal palpably undercuts the enjoyment of a facility by people, where trust can be reasonably asserted on the offering’s contin-ued availability, community telecenters for internet access are the best instance for application of a prohibition of retrogression on the right to internet access. Telecenters are physical facilities open to all for internet use and training, usually located in areas inhabited by underprivileged groups or in strategically chosen, isolated locations where the lack of common telephony or cable infrastructure makes internet access all but impossible.506 These facilities have been heavily and effectively relied on by government in developing countries like India and Brazil, where mass poverty, social disparities, a large territory and poor broadband infrastructure create islands of digital have-nots.507 Community access centers are used in de-veloped countries as well, where they are seen as an important alternative for disadvantaged people who cannot afford a home broadband connection or computer.508 Especially in areas that

anywhere else in the world, no pharmaceutical company could make a profit and thus the vaccine simply wasn’t produced. A few years earlier the Argentin-ian government had deployed a program whereby it commissioned the shots, but had then discontinued it. The Judiciary mandated that government rein-state such program, setting a deadline for the provision of the vaccines. The reasoning was that the policy decision to financially support such endeavor in order to benefit that specific group of people was made by government itself in the first place, not the courts. Id., at 147-154. 506 See Francisco J. Proenza, Roberto Bastidas-Buch & Guillermo Montero, Telecenters for Socioeconomic and Rural Development in Latin America and the Caribbean, 5, 6, 11, May 2001, archived at www.webcitation.org/6Fx2eZnF0 (defining telecenters and their potential development impacts on underprivi-leged or geographically isolated areas). 507 See Proenza, et al., supra note 506, at 26, 30 (noting the governmental sup-port and funding in developing countries). 508 See Proenza, et al., supra note 506, at 56 (emphasizing the importance of the development of telecenters in marginal areas and disadvantaged popula-tion).


are geographically isolated, the state’s role in financing high-speed connection for the telecenter facility is deemed crucial.509 There are many types of telecenter initiatives, however: those built and maintained by public-private partnerships and by NGOs, those arranged to function in schools, and those operated as franchises by telecom companies.510 Even though sustainability is commonly suggested to be a critical element of successful telecenters, in many cases the market simp-ly will not produce the conditions for such facilities in isolated rural areas or in extremely poor urban neighborhoods.511 In ad-dition, the notion of sustainability of telecenters does not relate exclusively to the financial aspect: it is very much about continu-ous, meaningful use by the community surrounding it, as well as political and institutional support.512 To the extent that people in a community usually come to rely on telecenters for internet ac-cess, a government’s decision to simply cut all funding for them or to outright close them down constitutes a potential violation of the prohibition of retrogression. Telecenters often serve as a hub for the provision of important government services online, as well as for training on ICT skills513 – that is why their role is per-

509 See Proenza, et al., supra note 506, at 62-3 (reporting the state monopoly to finance telecenters in El Salvador). 510 See Proenza,et al., supra note 506, at iv (listing the different types of telecenters). 511 See Shirin Madon, Nicolau Reinhard , Dewald Roode & Geoff Walsham,. Digi-tal Inclusion Projects in Developing Countries: Processes of Institutionalization, 15 INFORMATION TECHNOLOGY FOR DEVELOPMENT 95, 105-06 (2009) (arguing for the improvement of digital inclusion in developing countries). 512 See id. at 95-96 (stating “Sustainability is not just a matter of money, but al-so of the development of institutional arrangements for the continuity of staff-ing levels, and the long-term cultural and political support for the initiative from government officials, politicians, and the community itself.”). 513 See JAMES B. PICK & KAMALA GOLLAKOTA, TECHNOLOGY FOR RURAL TELECENTERS IN

INDIA: A MODEL AND EXPLORATORY STUDY OF DIFFUSION OF INFORMATION FOR

TELECENTER USE AND SUSTAINABILITY. AMCIS 2010 Proceedings. Paper 550, 3 (2010) (describing rural telecenters: “in a rural setting, where a majority of the potential users do not have an awareness of the potential of a computer or the internet, and do not have skills to use the technology, just providing access to a computer does not add sufficient value. The knowledge required to adopt is endogenous to the adoption . . . . In such situations, the providers of the


ceived to be that of knowledge levelers, not knowledge-gap en-hancers.514 In addition, when they are – as they should be – run by community leaderships515 and foster the creation by users of online content addressed to the community, telecenters play a vi-tal role and cannot be easily replaced or done without. 516 That is to say, out of many reasonable measures to affirmatively implement the right to internet access, public authorities are en-titled to choose those they see fit. When they do opt for telecenters and maintain them for a large enough amount of time, people will inevitably grow to depend on them and the protection of predictability and legal trust, associated with the provision of basic conditions for a dignified life, could justify a court’s overrul-ing of government’s decision to discontinue this policy. The prohibition of retrogression presents a viable venue for con-stitutional review of positive state performances. As I explained above, due to the difficulty in extracting uncontested and specific normative commandments out of constitutional norms nesting social rights, the horizon of choice available to the legislator is very broad. Courts seem to consciously step on eggshells when discussing social rights violations, even in countries where they have been explicated as rights and not as constitutional values or

technology need to help clients overcome the challenges that prevent adop-tion.”). 514 See Raul Roman, Diffusion of Innovations as a Theoretical Framework for Telecenters 1 INFORMATION TECHNOLOGIES AND INTERNATIONAL DEVELOPMENT 53, 60 (2003) (noting the knowledge gap states that higher socioeconomic status people tend to acquire information at a faster rate than lower socioeconomic status people so the gap tends to increase rather than decrease). 515 See Proenza, et al., supra note 506, at viii - ix (recognizing the need for community involvement by members who care about the community’s im-provement). 516 See Roman, supra note 514, at 61 (stating “(t)he intersection of these three elements – a community-based organization that uses different media to cre-ate, search and diffuse locally relevant content – makes telecenters a unique laboratory for researchers interested in studying how communication facili-tates the process of economic, social and cultural change.”); see also PICK &

GOLLAKOTA, supra note 513, at 9 (showing that perceived utility of the ameni-ties by family members, friends and neighbors is associated with more fre-quent use).


principles. What the Judiciary wishes to avoid seemingly at any cost is to make decisions that are traditionally perceived as be-longing to the legislator’s competence span. When courts invali-date a measure that would setback realization of the right to in-ternet access by discontinuing an entire network of community telecenters, they are not introducing a new positive duty in the legal and political system. Rather, they are simply making consti-tutionally binding a political decision on internet access policy that was made by the legislator itself. That is also the case with the application of material equality as a vehicle for the protection of the positive dimension of social rights.

H. PROTECTION IN CONNECTION WITH EQUALITY The role of the right to equality or the fundamental principle of equality in a framework of social rights protection is at times de-cisive, which results in it being very often discussed by literature along with topics on the justiciability of fundamental social rights.517 Material equality plays a part above all in legal systems with less intense protection (and sometimes apparently no pro-tection at all) of the positive dimension of rights.518 In Spain, for instance, it is mostly in connection with the equality clause that social rights acquire some “bite.”519 Of interest here is, naturally, not formal equality or equal treat-ment by law, but material equality or unequal treatment of cer-tain people due to them being in unequal, disadvantaged situa-tions. This is especially relevant in the context of the networked-society, since the internet, just like other technological revolu-tions before it, brings about an initial period of recession where certain groups profit much less from the technology than oth-

517 See Human Rights Literature, NOVEL RIGHTS, April 15, 2013 archived at www.webcitation.org/6Fx9IwTEj (discussing wide range of literature with human rights themes). 518 See, e.g., Anón and Pisarello, supra note 333, at 83-84 (providing Spain as an example of such a legal system). 519 See Anón & Pisarello, supra note 333, at 83-84. (noting social policies have thus been extended by the Judiciary to disadvantaged groups, even when the discrimination would be de facto, not prima facie, as against women, for exam-ple).


ers.520 Indeed, material inequality can be understood as the very grounds for the protection of social rights in the first place, and as a normative category.521 Equality can also function as a way to require the state to provide services not previously settled in leg-islation, but owed in light of the need to offer similar basic living and social conditions to everyone in a society.522 In this respect the European Court of Human Rights has found vi-olations of the European Convention on Human Rights by nation states in cases where a group was denied access to certain ser-vices such as education, for instance.523 When asked whether Belgians had a right to education taught specifically in one of the national languages, the Court stated that the negative right for-mulation of Article 2 of the additional protocol524 was not an ob-

520 See Chris Freeman, Social Inequality, Technology and Economic Growth, in TECHNOLOGY AND IN/EQUALITY: QUESTIONING THE INFORMATION SOCIETY 158 (Flis Henwood et al. eds., 2000) (noting that “these recessions were the result of the erosion of profits from the previous wave of technology and the necessity for a new infrastructure and new industries to unleash the next wave.”). Previous recessions caused by new technologies include that of the 1820-1840’s, which followed the advances of the industrial revolution and that of the 1970-1980t’s, which followed the popularization of automobiles, oil refineries the surge of the automation industry. See id. 521 See Arango, supra note 399, at 198-201 (arguing that social rights entitle individuals to state positive action when they are in a disadvantaged, material-ly unequal condition when compared to other people). 522 See Arango, supra note 399, at 198-201 (stressing states’ role in providing equality). 523 See Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium (Merits), App. Nos. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, [hereinafter “Belgian Linguistic Case (No. 2)”], 83, 1968, archived at www.webcitation.org/6FyeEtxcq (issuing sem-inal decision finding a right to education under the European Convention on Human Rights). 524 See Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocol No. 11), art. II, Nov. 4, 1950 (stating that “[n]o person shall be denied the right to education. In the exercise of any functions which it assumes In relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions.”).


stacle to acknowledging a positive right.525 The case marked the recognition of three elements of the positive right to education: right to equal access to education facilities, right to education taught in one of the national languages, and right to official recognition of the education.526 This right was further limited to include only existing school facilities, not a right to new school fa-cilities.527 The ECHR therefore didn’t require Belgium to imple-ment the right to education in a way that was foreign to the gov-ernment’s policies, it merely mandated that the service already offered be made available to everyone equally. As the protection of Belgian nationals who do not speak the most common language illustrates, relief is understood to be due when the group being discriminated against is considered to be socially disadvantaged in relation to those people being granted the pro-tection of the social right in question.528 Again in the setting of public education, Brown v. Board of Education529 is portrayed un-der this light as a ruling that extended the reasonable implemen-tation of the right to education to a socially discriminated group.530 Even though the case that gave the name to the group of legal suits decided by the U.S. Supreme Court did not revolve around the quality of the education supplied to black children in comparison to that made available to white children, many of the other cases contained extensive discussions (with collected sta-tistical proof) of this issue.531 When the Court had the opportuni-ty to manifest itself specifically on the issue of whether the Fed-

525 See Belgian Linguistic Case (No. 2), supra note 523, at 27 (stating that Pro-tocol I’s stated “right to education” is not inhibited by its “negative formula-tion”). 526 See Belgian Linguistic Case (No. 2), supra note 523, at 28 (recognizing these three elements). 527 See Belgian Linguistic Case (No. 2), supra note 523, at 28 (including the lan-guage: “right of access to educational institutions existing at a given time. . .”). 528 See Belgian Linguistic Case (No. 2), supra note 523, at 30 (discussing pro-hibited discrimination in connection with the right to education). 529 See 347 U.S. 483 (holding that race-based segregation in public schools is illegal under the U.S. Constitution’s Equal Protection clause). 530 See Arango, supra note 399 at 192-193 (characterizing Brown v. Board in this way). 531 See Abramovich and Courtis, supra note 406, at 170-171 (summarizing the history of the Brown line of cases).


eral Constitution’s Equal Protection clause entailed an obligation to provide education within minimum quality standards, it de-nied this argument.532 State courts, however, have gone much further in protecting education as a positive right, as was previ-ously mentioned.533 The Supreme Court of New Jersey was called upon to review the merits of the state’s education system, espe-cially on the issue of whether the bad quality of education pro-vided to some children as a result of zoning, discrimination, and in light of the amount of taxes paid by parents, violated a state constitution’s requirement that the state offer all children educa-tion of at least a minimal level of quality.534 Justice Weintraub’s majority opinion recognized that the U.S. Supreme Court had op-posed such a view very recently, but made clear that the New Jer-sey Constitution could very well demand something that the Fed-eral Constitution did not.535 He found that the state had indeed violated its duty in terms of the education system, applying a re-view standard whereby a state omission, not only an action, could be considered arbitrary.536 The Court upheld the trial court’s ruling identifying a violation of equality in the state’s pub-lic education financing system forcing the government to provide better education to a group of underprivileged children.537 This model of social rights protection linked with the right to equality has been taken up in different countries.538 In Israel, the

532 See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 2 (1973) (holding that while education is among states’ top priorities, in is not a constitutionally protected right). 533 See, e.g. Sheff v. O’Neill, 678 A.2d 1267, 1281 (Conn. 1996) (reaffirming citi-zens of Connecticut affirmative State constitutional right to education). 534 See Robinson v. Cahill, 303 A.2d 273, 276-77 (N.J. 1973) (outlining the con-stitutional issue regarding New Jersey’s education system before the court). 535 See id. at 282 (stating “[t]he question whether the equal protection demand of our State Constitution is offended remains for us to decide. Conceivably a State Constitution could be more demanding.” ). 536 See id. at 282 (finding “(u)ltimately, a court must weigh…the restraint or the denial against the apparent public justification, and decide whether the State action is arbitrary…[T]he court may call upon the State to demonstrate the existence of a sufficient public need for the restraint or the denial.”). 537 See id. at 289 (affirming the trial court’s decision). 538 See Ann I. Park, Human Rights and Basic Needs: Using Internationl Human Rights Norms to Inform Constitutional Interpretation, 34 UCLA L. REV. 1195, 1220 (1987) (providing the example of the International Covenant on Social, Economic and Cultural Rights, which has been ratified among numerous inter-


Supreme Court has mandated that the state offer Bedouin people living in the Negev region the same quality of healthcare services that existed at the disposal of Israelis in neighboring cities.539 In Khosa & Others v Minister of Social Development & Others, the South African Constitutional Court accepted a challenge against the government’s exclusion of permanent residents who are not citizens from protection under some elements of the Social Assis-tance Act (1992) and the Welfare Laws Amendment Act (1997).540 The state’s argument was that including non-citizens in this element of the social security protection would cause too high an increase in the spending and could not be supported by the budget.541 The Court dismissed the government’s claims both because it had not presented enough data to back them up and because even by the highest estimate the impact would represent only 2% of the total social security spending.542 The idea that residents, who had chosen South Africa as their home, and were paying taxes just like citizens, could be excluded from social secu-rity violated article 27(2) of the Constitution.543 The Court stated that the governmental interest of not burdening the state’s social security system in an excessive manner was legitimate, but should be pursued by restricting the recognition of foreigners as permanent residents, not by discriminating them after they had

national states and includes the rights to education and “the highest attainable standard of physical and mental health.”). 539See Talia Berman-Kishony, Bedouin Urbanization Legal Policies in Israel and Jordan: Similar Goals, Contrasting Strategies, 17 TRANSNAT’L L. & CONTEMP. PROBS. 393, 400 n.46 (2008) (referencing two Isreali Supreme Court cases: HCJ 4540/00 Abu-Afash v. Minister of Health [2000] (Isr.) and HCJ 7115/97 Adalah v. Ministry of Health [1998] (Isr.), in which the Court required the state to supply basic health services). 540 See Khosa & Others v Minister of Social Development & Others 2004 (6) SA 505 (CC) at 2 (S. Afr.) (stating the challenges brought by Khosa and other ap-plicants). 541 See id.at 32 (stating the government’s claims). 542 See id. at 39 (giving the Court’s reasoning). 543 See S. AFR. CONST., 1996, at § 27, (stating under the heading “Health care, food, water and social security: 1) Everyone has the right to have access to a) health care services, including reproductive health care; b) sufficient food and water; and c) social security, including, if they are unable to support them-selves and their dependants, appropriate social assistance. 2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. . .”).


acquired such status.544 The way chosen by the state would stigmatize permanent residents and violate their dignity.545 This mechanism for evaluation of the implementation of social rights introduces a much stricter review standard than in cases where a positive measure has not been taken at all by the state and a court must position itself on whether such would be re-quired by the existential minimum or would be part of a reason-

544 See Khosa, supra note 540, at 39-40 (reasoning the government’s concerns were legitimate, but there were other means to accomplish their goals). 545 See LIEBENBERG, supra note 401, at 157-61 (showing positive protection was achieved through equality in another famous South African case); see also Min-ister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CCT8/02) at 42 -3, 45, 47 (S. Afr.) (administering of Nevirapine to pregnant women would be restricted to a few public medical research and training sites instead of being available throughout South Africa’s public medical facilities.) Nevirapine had been recommended by the World Health Organization as effective in prevent-ing the transmission of AIDS from mother to child at birth. Because the num-ber of research and training facilities was very small, a large share of the peo-ple – especially those who could not afford private healthcare – would be left excluded for the purposes of this treatment. According to the Court, the rea-sons alleged by government to justify denying Nevirapine treatment to so many disadvantaged pregnant women were unreasonable:

The policy of confining Nevirapine to research and training sites fails to address the needs of mothers and their newborn children who do not have access to these sites. It fails to distinguish between the eval-uation of programmes for reducing mother-to-child transmission and the need to provide access to health care services required by those who do not have access to the sites. . . . There is a difference in the po-sitions of those who can afford to pay for services and those who can-not. State policy must take account of these differences. . . . The provi-sion of a single dose of nevirapine to mother and child for the purpose of protecting the child against the transmission of HIV is, as far as the children are concerned, essential.

Id. It is important to emphasize that instead of merely declaring that a better plan had to be implemented, the Court issued very specific orders to the govern-ment, such as:

Permit and facilitate the use of Nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV and to make it availa-ble for this purpose at hospitals and clinics when in the judgment of the attending medical practitioner acting in consultation with the medical superintendent of the facility concerned this is medically in-dicated

Id. at 80.


able realization of that right.546 To be sure, this is not about uni-form treatment by the law, which could also be enforced by strin-gent review mechanisms – as in fact it is, in many legal systems, including the United States. Rather, the application described here is seen as instrument for protecting social rights concerned with material equality violations. It is an equality of chances, not one of results or legal treatment.547 Protection for the positive dimension of the right to internet ac-cess can also be afforded in connection with equality. Just as with other social rights, enjoyment of opportunities for internet access is not even among different groups of people.548 Disadvantaged groups in terms of digital inclusion vary from country to country, but people living in rural areas usually are in a more difficult sit-uation when compared to those living in big cities.549 Indigenous groups face barriers to internet access in most former colonies550 and individuals with vision, hearing or mobility handicaps have a very hard time going online.551 Gender discrimination is a more

546 See Minister of Health, supra note 545, at 29 (asserting that courts need have a focused and restrained role for adjudications of issues with multiple so-cial and economic consequences). 547 See MANGOLDT, ET AL., supra note 355, at 59 (noting that the German the right to equality has been interpreted in connection with the social state prin-ciple to require an equality of chances that translates, for example, in a state duty to provide support for the costs of judicial procedures). 548 See Katrina Samaras, Indigenous Australians and the ‘Digital Divide’, 55 LIBRI

84, 84-85 (2005) (providing the example of disadvantaged indigenous Austral-ians). 549 See id. at 85 (discussing the extent of the “Indigenous digital disad-vantage.”). 550 See id. at 91 (stating “The digital disadvantage of Indigenous Australians, comprising both inequities in ICT distribution and skills-based capability, stems from existing socioeconomic inequalities.”). 551 See Iosif Klironomos, Margherita Antona, Ioannis Basdekis & Constantine Stephanidis,., White Paper: Promoting Design for All and e-Accessibility in Eu-rope, 5 UNIVERSAL ACCESS IN THE INFORMATION SOCIETY 105, 117 (2006) (reporting action by Europe and member states to affirmatively help people with disabili-ties in overcoming obstacles to internet access emphasizes the need “. . .to fur-ther increase awareness, dissemination and mainstreaming of DfA [Design for All] and shift towards a more strategic approach in stimulating market atten-tion and mobilising the industry by providing effective motivation for the de-velopment of accessible IST [Information Society Technology] products and services.”).


serious problem in some countries, but even in the United States women are said to be in an underprivileged position,552 as are Af-rican-Americans; studies have found that black people in America are less likely to have a computer at home553 and also less likely to have internet access than white people, even when variables such as level of education and family income are controlled for.554 Coupled with this is the fact that they were more aware than white people about the existence of public internet access cen-ters.555

This despite the fact that “[w]eb accessibility is nowadays required by law (e.g. in Italy and Germany) and policies (e.g. European Parliament, 2002), while in the USA, websites are additionally required to comply with the provisions of Section 5084 of the US Rehabilitation Act.” Id., at 107. 552 See J. Cooper, The Digital Divide: the Special Case of Gender, 22 JOURNAL OF

COMPUTER ASSISTED LEARNING 320, 326 (2006) (discussing that with women in developed countries, the main concern is that information literacy training is undermined by a special difficulty that girls have with computer use in the classroom).

One root cause of the digital divide has emerged from this analysis. The attempt to introduce computers into education with the same motivational embellishments that bring boys to the video arcade be-gins a cascade of expectations associating computers with the male gender.

Id. 553 See Hiroshi Ono & Madeline Zavodny, Race, Internet Usage, and e-Commerce 30 THE REVIEW OF BLACK POLITICAL ECONOMY 7, 13 (2003) (finding.African-Americans and Hispanics were less likely to own computers in a survey en-compassing 1009 individuals in the United States between the ages of 15 and 59. Among those with computers, however, these groups were just as likely to have internet access as whites.). 554 See Kenneth R. Wilson, Jennifer S. Wallin & Christa Reiser., Social Stratifica-tion and the Digital Divide, 21 SOCIAL SCIENCE COMPUTER REVIEW 133, 139 (2003) (finding in a telephone survey of approximately 500 people in the state of North Carolina: “(w)hen income, education, age, work status, marital status, and children living at home were entered into the equation, the effects of rural residence and gender were no longer statistically significant. However, African American respondents were still significantly less likely to have home a com-puter.”). 555 See id. at 140 (explaining that although African American household are

less likely to have a home computer or internet access, they are more likely to be aware of free public access to computers).


The difficulties that present themselves to such groups must be acknowledged and addressed in digital inclusion policies, such that sometimes formal equal treatment can constitute a violation of equality in connection with the right to internet access.556 That would be the case of a plan to develop broadband that com-pletely excludes rural areas and serves only urban citizens.557 The systematic provisioning of public community telecenters that have absolutely no support for use by hearing-impaired or visual-ly-impaired people is arguably another instance of equality viola-tion.558 Lastly, the adoption of information literacy training in American schools that overlooks the special situation of black male children is susceptible to the same criticism.559 In such situations, government has taken the initiative to imple-ment the right to internet access in a certain way, but in doing so excludes a disadvantaged group.560 Courts can issue rulings that require the state to complement an already existing policy and expenditure in order to provide the necessary material condi-tions for equal access to the internet.561 This is yet another way in which the positive dimension of the right to internet access can

556 See Licoppe & Smoreda, supra note 11, at 390 (describing digital inclusions policies). 557 See BENJAMIN, supra note 89, at 763 (ensuring rural areas are not excluded in their plan by subsidizing for low-income communities). 558 See Klironomos, et al., supra note 551, at 117 (stressing the importance of enhancing existing international and cooperation to provide access to every-one). 559 See Linda A. Jackson, et al., Race, Gender, and Information Technology Use: The New Digital Divide, 11 CYBERPSYCHOLOGY AND BEHVAVIOR 437, 441 (2008) (discussing a survey of over 600 children (only 515 of which were in the final sample) in the southern lower peninsula of Michigan concluded that

African American females use the Internet more intensely and in more diverse ways than does any other group, whereas African American males use it less intensely and in fewer ways than does any other group. . . . findings suggest that educational and community interven-tions should focus on two related objectives: bringing IT to African American males and bringing African American males to IT.

Id.. 560 See Klironomos, et al., supra note 551, at 107 (recognizing the governmen-tal efforts to promote accessibility in informational society). 561 See Klironomos, et al., supra note 551, at 107 (describing the lines of action governments can take, such as the creation of a new policy).


be enforced by the Judiciary. Colin Crawford has posited that a right to internet access could be recognized in the United States as a result of the application of public accommodation doc-trine.562 Because private company websites present themselves as open to the public in general, a lack of accessibility support to permit visually-impaired people from enjoying the web page just like anyone else would be unequal treatment under public ac-commodation doctrine.563 The result of such a finding is a posi-tive obligation to employ the necessary measures to allow handi-capped individuals to access the website.564 Equality is used in this sense as a means to require positive performances that pro-tect an aspect of the right to internet access.

I. INTERMEDIARY CONCLUSIVE REMARKS As I have already indicated, my intention thus far was not to re-spond to arguments against the justiciability of social rights. Nei-ther did I seek to contend that one or other specific legal system should commit to the constitutional review of such rights – or proceed with previous practices in this direction. This chapter had a mainly descriptive nature – to present the state of the art in terms of justiciability of social rights in several different jurisdic-tions and how the enforcement of a right to internet access could fit this framework. There is a great deal of difference between the control of state actions and of state omissions, which unfolds into a peculiar and complex task of analyzing whether the state has failed to provide a protection that it was constitutionally obliged to guarantee. The overall higher deference to the legislator in the review of omissions is complemented by principles, such as progressive implementation and the existential minimum, which narrow the scope of governmental discretion in regulating the positive di-

562 See Colin Crawford, Cyberplace: Defining a Right to Internet Access through Public Accommodation Law, 76 TEMP. L. REV. 225, 247-52 (2003). (summarizing the modern law of public accommodation in the United States). 563 See Id. at 266 (positing the internet as a “place” of public accommodation). 564 See Id. at 265-66 (highlighting the positive obligations that utility providers owe to their customers).


mension of rights like internet access or free speech.565 The so-cial state and subsidiarity principles allow a distinction between, on one hand, the protection of social rights as an end in itself or as a benevolent concession on poor people and, on the other hand, the maintenance of the ground conditions that support every single individual in their self-subsistence.566 The right to equality works in this context as an accessory norm to correct undue discrimination in the realization of rights, as well as ori-enting the lower bound of the state’s discretion, the existential minimum, below which courts must provide relief regardless of prior legislation specifically enacting a governmental obliga-tion.567 I did not mean to convey that the existential minimum or a mini-mum core guarantee applies only to information literacy; that the principle of progressive implementation deals exclusively with the build-up of broadband infrastructure; or that the prohibition of retrogression restricts the legislator’s discretion only in the field of the implementation of telecenter facilities. These connec-tions were merely the result of a choice in how to organize my arguments in this second part of the paper. To be sure, progres-sive implementation applies to claims concerning information lit-eracy and public telecenters, just as an existential minimum could operate as a guarantee of free home broadband provision. The principle of subsidiarity plays a role across the board, forcing government to provide for those – and only those – that cannot alone afford to access the internet.568 If a certain disadvantaged group of people is excluded from the public provision of internet

565 See Young, supra note 470, at 127. (acknowledging that the existential min-imum narrows the right of governmental discretion regarding the implemen-tation of rights). 566 See GOSEPATH, supra note 432 at 162 (distinguishing the subsidiarity princi-ple as one that requires justification for transfering responsibilities to higher level institutions, but not to lower level institutions). 567 See Figueiredo & Sarlet, supra note 447, at 174 (noting that courts have hinted at the notion of existential minimum by requiring states to provide re-lief in situations that lack implemantation of social rights). 568 See Gosepath, supra note 432, at 157 (defining the principle of subsidiarity as a concept that gives priority to a smaller social or political entity in any community).


access services, they can demand relief and expansion of the state protective action to encompass them, regardless of whether the implementation of the right under scrutiny has been the rollout of a fiber-to-the-home network with public funds, the establish-ment of community telecenters by government in certain areas or training for ICT skills in public schools.569 All elements of social rights enforceability that were presented here can be construed to impact in some way the answer that the Judiciary will give to a claim for relief based on the violation of a right to internet access. In each concrete case the judge or a con-stitutional court will have to determine which of these principles and legal mechanisms will be more relevant and closely related to the particular issue at hand.

CONCLUSION The protection of freedom of expression in a constitution isn’t a neutral legal rule. Rather, it is inserted in a context of other rights that have ontological goals. People’s capacity to communi-cate in a society serves not only a function of self-determination but also one of self-government. Different nations and constitu-tional orders can choose to privilege one of such aims, or to place equal weight on both - this decision will be taken in light of the concept of democracy that is adopted. In the first part of this paper I argued that in a country with a lib-eral, freedom and individualism-oriented political and legal cul-ture stakeholders in all three branches of government have un-derstood the protection of freedom of expression as justifying and sometimes indeed requiring affirmative state action to ena-ble the conditions for meaningful communication among all members of society. This enabling function played by govern-ment when expression is concerned is different from the enabling function characterized by a concept of the state as a steward of social welfare. The former derives from a certain model of de-

569 See Samaras, supra note 548 at 84 (summarizing the interventions and strategies that can be implemented to promote a socially inclusive information society).


mocracy while the latter translates into an active role in the dis-tribution of economic resources. Therefore, to the extent that af-firmatively protecting freedom of expression is decidedly not a result only of the protection of social rights by government, the notion of a positive dimension of a right to internet access is not wholly incompatible with legal systems where the constitution does not protect welfare guarantees. That is to say: the protec-tion of the positive dimension of the right to internet access or of the right to free speech can arguably be endeavored by courts in liberal constitutional orders. Freedom of expression is not suited, however, to adequately ful-fill all of the individual interests associated with the flow of in-formation in a networked-society. Coupling this traditional right with the right to access to (public) information still does not suf-fice to properly cover situations where people would identify an injustice related to the value of communication. These conclu-sions can be drawn from an analysis of violations by state action, but they remain even clearer when one entertains the situations that are produced by state inaction. The efforts to actively promote the conditions for free speech in the United States show that the telephone, broadcast, print and cable media possessed certain inherent architectural characteris-tics that rendered the separation of macro- and micro-management unfeasible. The act of giving an individual access to a platform or conduit to disseminate a message with a broad reach was always one and the same with determining what the message would be and in what conditions it would be presented. The impossibility of cost-effectively disconnecting the granting of access from the editorial function created unavoidable – even if abatable – restrictions on the right of free speech of the platform owner. The internet’s original nature of decentralized, asynchro-nous communication medium radically changed this context such that promoting free speech by ensuring access to the internet can now be achieved without the right-constraining implications of the right of reply, access to the press or must-carry mechanisms.


The best way to promote the conditions for free speech is thus to guarantee access to the internet. Where the constitution is un-derstood to only require a limit on state action and not in any way call on positive state performance, this means that the posi-tive dimension of free speech or of a right to internet access play the role of justifying the restriction of other (often negative) rights when government takes the initiative to implement digital inclusion policies. Where the constitution protects positive rights, the constitutional review of state omission in realizing the right to internet access is guided by the multinational literature and jurisprudence on the enforceability of social rights. Acknowledging a constitutional right to internet access does not automatically lead to the recognition of a subjective right or enti-tlement of everyone to free broadband. Courts will engage in balancing, just as they would if the claim involved the negative dimension of a right – a claim of unconstitutional state action. It will be a different fashion of balancing, however. A higher level of discretion will be reserved to government in choosing which of several possible (sometimes parallel) implementations of the right to internet access it will endeavor, as well as in deciding how far it will take such realization. Compliance with the right will not be demanded of government overnight and due consid-eration of budgetary constraints will be made. In certain very ex-ceptional situations – to be found necessarily in each real case and not as an abstract rule – internet access can be understood as so necessary for a dignified life that even the state’s discretion in deciding how to implement it has to be overruled and an imme-diate, concrete material provision has to be mandated by the ju-dicial authority. This will occur very rarely and will safeguard only those individuals who have their capacity deprived, often but not always for economic reasons, thus preventing their self-sufficiency. A cutback on previously achieved levels of imple-mentation of the right to internet access will call on government to offer more elaborate justification. As the discretion available to retrogress the positive realization of the right is lower, a strict-er scrutiny standard will be applied. Lastly, if government de-cides to provide a part of the population with a performance within the scope of protection of the right to internet access, but


leaves out a disadvantaged group of people, courts will look into the reasons for the distinct treatment and might mandate an af-firmative protection of internet access supported by the right to material equality. The future tense in this previous paragraph, as well as the gen-eral forward-looking prescriptive tone that underlines the second part of this paper were purposely employed to convey my belief that this proposed model of judicial enforcement of internet ac-cess as a social right will prove much more useful and convenient in the near future, as more and more countries further their tran-sition into networked-societies.

a right to free internet? on internet - suffolk university

Documents