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Professor Lawrence Lessig makes the (rather dire) prediction in Code and Other Laws of Cyberspace that the Internet will be transformed from an unregulated medium into a highly regulated one. Lessig posits that the Net will largely be regulated not by the government but by commercial entities - in particular, by the software (or code) written by entities such as AOL and IBM. While the government's regulatory power is limited by the Constitution, regulation by commercial entities is not. For example, Internet service providers can censor "indecent" speech on the Net largely free of constitutional constraints. The "Net libertarians" applaud such nongovernmental regulation and contend that market forces will suffice to impose any necessary limitations on such commercial Internet regulation. For example, if AOL does not sufficiently respect our free speech rights, we can "vote" with our mouse clicks and choose another Internet service provider that does. Lessig is skeptical of this Net libertarian model, and contends that although such a model might reflect and incorporate individual values, it will be incapable of adequately protecting our important "collective" values.

In this essay, I first describe Lessig's ideas about Net regulation and then explain the Net libertarian response to these claims, focusing on whether a libertarian market-based model would adequately protect freedom of expression. I then analyze the mechanisms of exit and voice, examining the role of exit in both Robert Nozick's libertarian utopian framework and in the Net libertarian model. I consider the potential dangers that an exit-based model poses to protecting unpopular speech, and observe that the sufficiency of such protection under the exit model is a function of the particular marketplace. I conclude that Lessig has not shown that marketplace regulation endangers our important collective values. I argue further that Lessig's favored mechanism of voice, wherein individual market members reshape a market's values from within, may not serve to incorporate our important collective values. Lessig contends that voice could afford such protection if somehow the meta-value of "deliberation" were incorporated into the expression of voice - i.e., by providing individuals with information on a subject before they were asked to make value-based decisions. However, I contend that Lessig has not shown that the introduction of deliberation into the expression of voice is warranted. I conclude that while government intervention may eventually be necessary if the market's potential to disregard collective values does materialize, we have not yet reached that point.

Next, I consider a market-based model of cyberspace and examine Lessig's claim that the government will be powerless to intervene if the cybermarket were no longer conducive to reflecting our important values. I argue that, contrary to Lessig's claims, the First Amendment's state action doctrine does not prohibit court intervention where private regulation threatens important collective values such as freedom of expression. In interpreting the state action doctrine in situations where private parties have threatened free speech rights, courts have balanced the competing rights and interests at stake, examined the markets involved, and considered whether meaningful alternative avenues of expression were available. Furthermore, the government has used other mechanisms to intervene where markets have failed to protect speech adequately. I conclude that Lessig has not shown that a cyberspace governed by market forces will fail to incorporate important collective values or that courts and policymakers will be powerless to protect such values if the marketplace indeed fails to do so.

GW Paper Series

GWU Legal Studies Research Paper No. 335; GWU Law School Public Law Research Paper No. 335

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