Open Access and the First Amendment: A Critique of Comcast Cablevision of Broward County, Inc. v. Broward County

To what extent does the Free Speech Clause of the First Amendment bar the adoption of “open access” regulations? Open access (or “net neutrality”) refers to a policy that would require broadband Internet providers, such as cable and phone companies, to allow competitive Internet Service Providers (ISPs) onto their broadband lines at nondiscriminatory rates. A federal district court in Florida recently held Broward County’s open access ordinance unconstitutional on the grounds that it would force speech – in the form of Internet content – on to the local cable company. If the district court’s analysis is correct, then open access regulations are foreclosed by the Free Speech Clause. This article argues that open access regulations are, in fact, thoroughly consistent with the First Amendment. Broadband providers maintain the kind of “bottleneck” control over Internet content that justifies regulations aimed at facilitating the free flow of information. Broadband providers are already using their strategic position to interfere in the e-commerce and video-downloading markets, and they have the power to speed up or slow down the delivery of Web-pages and other Internet applications. By breaking the broadband provider’s bottleneck control over Internet content and applications, open access regulations serve the important government objectives of facilitating robust public discourse and free markets. The First Amendment does not stand in the way of this important policy proposal

Criminal Jurisdiction and the Nation-State: Toward Bounded Pluralism

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Innocence Commissions and the Future of Post-Conviction Review

In the fall of 2006, North Carolina became the first state to establish an innocence commission – a state institution with the power to review and investigate individual post-conviction claims of actual innocence. And on February 17, 2010, after spending seventeen years in prison for a murder he did not commit, Greg Taylor became the first person exonerated through the innocence commission process. This article argues that the innocence commission model pioneered by North Carolina has proven itself to be a major institutional improvement over conventional post-conviction review. The article explains why existing court-based procedures are inadequate to address collateral claims of actual innocence and why innocence commissions, due to their independent investigatory powers, are better suited to reviewing such claims. While critics on the Right claim that additional review mechanisms are unnecessary or too costly, and critics on the Left continue to push for a court-based right to innocence review, the commission model offers a compromise that fairly balances the values of both finality and accuracy in the criminal justice system. At the same time, I argue, the North Carolina commission suffers from the tension – inherent in all expert agencies – between efficiency and discretion, on the one hand, and procedural fairness and accountability, on the other. I offer several suggestions for reform of commission procedures to help insure that none of these values is overwhelmed by the others. Overall, the record of the North Carolina commission demonstrates that the commission approach can provide justice where the traditional court system has failed, and, with the reforms I suggest here, it ought to be a model for states across the country