First Amendment analysis has historically depended on whether a party is a speaker, an editor, or a carrier. With communications technology rapidly evolving, determining which category is appropriate becomes increasingly complex, and ascertaining the First Amendment protections that are applied to various actors in the process of diffusing ideas becomes difficult. This article looks to the historical treatment of the First Amendment rights of speakers, editors, and distributors. This article traces the Supreme Court’s treatment of speech regulations on new technologies, from telegraph and telephone regulations to the seminal Turner Broadcast System, Inc. v. FCC case that created rules for regulating speech in the cable industry. Using this historical basis, the article creates a framework for analyzing First Amendment issues and the new media technologies. Carriers that have the ability to control access to essential pathways of communications can be subject to content-neutral regulation designed to encourage carriage of a diversity of information sources. Governments, however, are not permitted to turn private carriers into authorized censors of the speakers they carry. Finally, liability rules for distributors must be sensitive to the ease with which distributors can be deterred from carrying the controversial speech of others. Carriers should only be liable if they are active participants in illegal speech or if they have been informed that an independent tribunal has determined the speech to be unprotected.
Authors, Editors, and Uncommon Carriers: Identifying the "Speaker" within the New Media, 71 Notre Dame L. Rev. 79 (1995)