Cities Can’t Censor Municipal Networks Under the First Amendment

I am on several email listservs with folks who think about the Internet. This weekend, a question on one of the lists prompted discussion on several of them. The question: can a city block some websites on its network when it offers Internet access to its residents, either through Wi-Fi or fiber networks? Said another way, would the First Amendment protect citizens’ rights to access all the websites through a municipal network?

Let’s consider two possible answers, simply yes or no. On the one hand, you may argue that “he who pays the piper calls the tune”– because the government owns the network, it has the right to choose which sites are accessible. On the other hand, you may believe that the government has the same (or less) constitutional power to block sites on its own networks as it does to order sites blocked on private networks like Comcast’s, Verizon’s and AT&T’s.

Much of the discussion on the listservs is pointing out that municipalities have not attempted to block sites, nor have they expressed much desire to do so. The cities and towns offering Internet access generally don’t have censorship in mind; they are trying to improve access.

I want to focus on the constitutional question: I believe the First Amendment would likely restrict the towns’ ability to block access to certain sites. The question, to some extent, is which analogy is most apt for Internet access, or which previous case will determine the outcome? A court may adopt one of several frameworks to reach its decision, partly because a law can violate the First Amendment for many different reasons and partly because several different judicial tests may apply to similar situations (e.g., “subsidized speech” doctrine and “public forum” doctrine overlap sometimes, as I discuss here).

Designated public forum?

The Supreme Court has held that public streets, parks, and squares are “traditional public forums,” and that the government cannot ban specific content in those forums. This is the case even though government owns the property. Here, the government, while piper-payer, cannot call the tune. I doubt a court would deem a municipal network a “traditional” public forum because networks are less “traditional” forums than public squares.

But the analysis doesn’t end there. The Supreme Court has defined other kinds of forums in its analysis.

There are “designated public forums.” That is, courts can decide that a forum isn’t “traditional” like a street or park, but that the actions of the city officials have “designated” the forum to public speakers in a way that requires city officials not to discriminate among the speakers. The government could explicitly designate a public forum. City officials should do so and city residents should demand it. A government may implicitly designate a public forum through its actions and practices; that is why governments sometimes lose these cases, while insisting they never explicitly designated a public forum.

So, in short, a municipal network might be a designated public forum, and our speech on that network would be protected.

Vague discretion in a nonpublic forum?

There are nonpublic forums–forums over which government has more discretion. But even in nonpublic forums, a restriction must be both reasonable and “not an effort to suppress expression merely because public officials oppose the speaker’s view.”  Thus some laws for a municipal network would be unconstitutional if they suppressed a speaker or site based on its views.

Even if a law, on its face, didn’t target a particular view, it could be unconstitutional for being so vague and covering so many activities that it gave the city officials wide discretion to pick on and censor only those speakers whose views they opposed. Indeed, when the San Francisco BART cut off mobile access to stop a protest, Eugene Volokh and I discussed a similar question. Volokh believed that even if the BART network was a nonpublic forum, one of the restrictions was vague and overbroad, and therefore unconstitutional. Considering the language in cases like Reno v. ACLU and other Internet speech cases, I think it likely that courts would find municipalities’ attempted definitions written in regulations to be problematic, even if the network were a nonpublic forum (or private). Indeed, the ACLU analyzed a proposed private network that the FCC considered authorizing, one that would require a free family-friendly tier. The ACLU found the restriction’s vagueness and overbreadth problematic.

Subsidized speech

There are also complicated cases involving speech subsidized by the government. For example, the government funds public radio stations. In the early 1980s, Congress tried to tie those funds to a requirement that the stations not “editorialize.” But here, the piper-payer could not call the tune. The radio stations could take the funds and call their own tunes.

Another case goes in the opposite direction: the Supreme Court held that libraries accepting public funds can be required to block pornography.

We have to ask: which is more similar? I think the nature of libraries as a public physical space for families and children would distinguish that case from a municipal network that people use in their own homes.

Postal service?

Several people have pointed to the postal service, which the federal government owns and runs, as an example of a publicly owned network to which the First Amendment (and Fourth Amendment) applies, limiting the government’s power to restrict speech. Some rules have been constitutional, others have not been, but the general constitutional rule is largely speech-protective. At any rate, the rule isn’t merely: the piper calls the tune. The public has rights.

Conclusion

The judicial analysis doesn’t end at answering whether a municipal network is a “traditional public forum.” That is only the start of the public forum analysis.

Other analogies and precedents may also inform the courts. It’s perhaps not a slam-dunk case in either direction–until we see a clear restriction we can evaluate. But the existing precedent provides much comfort.

Finally, courts are not always so mechanistic. Judges understand the effects of their decisions, and several pro-free speech decisions would be difficult to explain based on precedent alone or the reasoning in the case. The judges seem to say–in a democracy like ours, government shouldn’t have the power to censor speech in this way. And when judges have a range of different doctrines to choose from (I include only a few above) they might pick and choose the doctrine that protects speech and conforms to our intuitions–that municipal networks should be free, not censored.

As usual, happy to correct any mistakes or address anything I overlooked, so let me know in comments. Also, Chapter 3 of my new e-book, On Internet Freedom, discusses some public forum questions in some depth.

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