How relevant is Ithiel De Sola Pool’s argument of 36 years ago to the current media environment?

Originally written for The Fletcher School’s International Communication course, September 2019.

Pool’s argument that electronic media should be as free as old guard analog media can be applied to our consideration of laws around information and communication technology today. As more people come online, regulators struggle to understand their role and responsibility in the digital media landscape. Pool anchors his case in the day’s status quo and a projected future in which he, accurately, anticipates an accelerated flow of information. This will require reconsideration of archaic regulation that no longer fits old legal paradigms.

The net neutrality debate is one way we are grappling with this. While its principle that all internet traffic should be treated equally and be accessible by all is understood, decisions around which agency should set standards and the extent to which regulation could harm consumers — through increased costs or a lower quality online experience — remain unclear.

Going forward, it will be important to define if internet service providers fall under the purview of common carriers, around which some laws already exist. New communications technologies don’t have the same legal protections that print, common carrier and public discourse had. Labeling ISPs as common carriers could both protect freedom of speech on their platforms as well as obligate them to serve all on equal terms without discrimination.

Furthermore, U.S. courts and regulatory agencies must agree on the extent to which the First Amendment applies to all digital communications, as this remains a source of confusion. This is especially vital considering the increase of cross-platform media and hybridized forms of communication, that can meld broadcast, digital print publication and live tweeting of a press conference, for example. Social media as the new public square also requires us to ask if the First Amendment can still be leveraged to protect public discourse, given its new context. Today, the First Amendment isn’t enforced as dogmatically as it was when Pool wrote about its waning influence. As such, those sharing ideas and information digitally are more likely than ever before to have their freedom of speech compromised.

Regulation has the power to lead to discrimination and censorship. When it presents itself as necessary to combat monopoly and technical problems, it also gives regulators power to deny a license if communications are deemed not to serve the public. Laws that purport to protect users will rely on state authorities to define harmful content, inherently pushing certain biases and allowing “preferred ideas” to come to the fore. Human freedom is about having the choice to pursue knowledge — no matter the subject matter or medium — and regulatory involvement or possible censorship risks infringing upon that.

In conclusion, as Pool states, it remains dangerous to give regulators the power to grant or block access to content and communications online, and we should fight for laws that will protect freedom of speech while being nimble enough to adapt to rapidly advancing technological innovations.