INTRODUCTION. The Internet is considered to be one of the most, if not the most, important evolutionary steps in the advancement of freedom of speech in modern history. It has been referred to by at least one United States court as “the most participatory form of mass speech yet developed.” The Internet allows anyone, for the small price of owning a computer, smartphone, or tablet, to have full and unlimited access to a platform granting, in theory at least, access to an audience of millions of people around the world. As part of this cyber community, people can freely exchange information and ideas.
This great potential also brought with it great concerns, as the hazards that existed in allowing free speech––such as expression of defamation, hate speech, incitement to violence, and distribution of misinformation and materials that are sensitive to national security—were amplified and multiplied exponentially. With the click of a mouse or a few taps on a keyboard, anyone can “poison the well” and generate grave, virtually irreparable damages.
Congress, already aware of these dangers in the mid-1990s, made various legislative attempts to restrict and control content on the Internet, mostly in relation to protecting minors from harmful content. In a series of cases, the United States Supreme Court struck down such attempts as violations of the First Amendment. In such cases, the Supreme Court emphasized time and time again that it would examine such legislation with strict scrutiny.
This in turn led Congress to attempt to privatize content-regulation through legislation that allows and motivates the private sector, i.e., Internet service providers (ISPs), to freely regulate Internet content as they see fit. Section 230 of the Communications Decency Act (CDA), entitled “Protection for private blocking and screening of offensive material,” provides ISPs with almost full immunity from liability in the decisions they make regarding whether or not to censor user content. Among the underlying policies of section 230(b), Congress listed: to promote the Internet and interactive media, to preserve the free market for the Internet and media services, and to promote the development of technologies for content filtering by the user. While the goal of incentivizing direct content regulation, rather than developing filtering tools to be controlled by the user, is not explicitly mentioned as part of the declared policies, it is clearly an objective. At the very least, it is a welcomed side effect from the broad immunity granted to ISPs by section 230, specifically subsection (c)(2).
This leads to the question of whether the policies listed in section 230 are indeed advanced in the most optimal way and at what cost for free speech. If the answer is no, the policies are not advanced in the most optimal way, this in turn leads to another question: What can be done in order to strike a balance between effective regulation against harmful content and protection of free speech on the Internet that is threatened by such regulation?
This Article will explain why governmental regulation is the worst possible alternative and why private regulation is the best alternative, if not the only possible way, to ensure effective content regulation. However, unfettered private regulation, absent an array of checks and balances, gives too much power to entities that do not possess sufficient incentives to adequately protect free speech—free speech the public needs to preserve and advance.
While this Article restricts its main theme and its conclusion to the issues regarding privatized content control, it does raise a far broader issue: Whether the existing territorial, institutional legal framework is an effective forum to regulate cyberspace. As described in Part E of this Article, the regular “old world” system is struggling to offer effective remedies that are needed to resolve Internet-based disputes. Such disputes often have characteristics that make them insolvable, which are especially due to the nature of the judicial system. For example, issues are often international in nature or pose a question that is too urgent for a court to effectively solve. Often, there are cost-benefit issues for private users that prevent them from even seeking a remedy to their injury. All of these concerns are embodied in cases of wrongful censorship, but these concerns also exist in nearly every other aspect of cyberspace. As such, the problem of censorship is a remarkable test case to examine such issues and to try to offer a better solution.
As a preliminary note, this Article uses, for the sake of convenience and simplicity, the terms “Internet” and “cyberspace” as a general reference to all publicly open infrastructures and services. However, the scope of this Article is not limited to the “classic” concept of the Internet since forms of social communication and exchange of content have dramatically expanded.