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In recent years, a growing number of commentators have raised concerns that the decisions made by Internet intermediaries — including last-mile network providers, search engines, social networking sites, and smartphones — are inhibiting free speech and have called for restrictions on their ability to prioritize or exclude content. Such calls ignore the fact that when mass communications are involved, intermediation helps end users to protect themselves from unwanted content and allows them to sift through the avalanche of desired content that grows ever larger every day. Intermediation also helps solve a number of classic economic problems associated with the Internet. In short, intermediation of mass media content is inevitable and often beneficial. Calls to restrict intermediation have also largely overlooked the longstanding tradition reflected in the Supreme Court’s First Amendment jurisprudence with respect to other forms of electronic communication recognizing how intermediaries’ exercises of editorial discretion promote free speech values. The debate also ignores the inauspicious/dubious history of past efforts to regulate the scope of electronic intermediaries’ editorial discretion, which were characterized by the inability to develop coherent standards, a chilling effect on controversial speech, and manipulation of the rules for political purposes.


Internet, broadband policy, intermediation, mass media, net neutrality, editorial discretion, broadcast regulation, scarcity, Pacifica, cable television, privacy, security, dial-a-porn, time brokerage, Fairness Doctrine

Publication Title

George Washington Law Review

Publication Citation

78 Geo. Wash. L. Rev. 697 (2010).