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Hastings International and Comparative Law Review

Abstract

On July 2, 2012, Verizon filed a brief with the United States Court of Appeals, District of Columbia Circuit, stating that the open-network, antidiscrimination rules adopted by the Federal Communications Commission "violate[d] the First Amendment by stripping [Verizon] of control over the transmission of speech on [its] network." Verizon argued that its broadband network is its "microphone" and its "newspaper," essentially claiming the online communications of some 200 million Americans as its own.

This article first describes how the United States First Amendment and communications law have evolved to a point where Verizon's argument is plausible. It then compares our own network-speech jurisprudence with that of a different constitutional culture. The First Amendment, while understood as a "free speech" protection, is frequently just the opposite - either missing in action, or applied to lessen the amount of speech, information, and opinion available to the public. One reason for this is that courts have typically focused on the "government shall make no law" language rather than the "freedom of speech" phrase at the end of the First Amendment.

The German post-war constitution (the Grundgesetz or Basic Law), by contrast, was built on the ashes of a fascist dictatorship that had misused mass communications, and was structured to make a similar catastrophe as unlikely as possible in the future. Its speech article (Article 5) guarantees the "institutional freedom" of broadcasting and the press, and protects speech and information transfer as dynamic processes. The German Constitutional Court has interpreted Article 5 to require the state to safeguard the opinion and informationtransfer functions of broadcast media in particular, and of "individual and public opinion-building" in general, as necessary conditions for democracy.

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