Of Mediums and Metaphors: How a Layered Methodology Might Contribute to Constitutional Analysis of Internet Content Regulation

There exists an ongoing debate as to whether governments should attempt to regulate the Internet. Those who argue that neither the nor its content should be regulated often conflate the question as to whether, in principle, the should be regulated with the related, but distinct question as to whether, in fact, the can be regulated. As a result, many arguments against the application of law to the and its content are premised on amoral bases. Simply put, the argument is that if the medium defies regulation, you should not regulate it. While we should be concerned about enacting laws that are completely unenforceable laws have regularly been enacted without proof that they will regulate perfectly. Rather, the goal has generally been for laws to regulate effectively. There is no principled reason to apply a different standard to the regulation of content. In deciding whether to regulate content we should ask two distinct questions: (i) can content be regulated, and (ii) should content be regulated. At a minimum, we should pay attention to the points in the regulatory decision-making process at which these two questions overlap.Both questions have been addressed in Canada (in Citron v. Zundel and, more recently, in Schnell v. Machiavelli Enterprize Inc.) and in the U.S. (in Reno v. A.C.L.U.) in the context of constitutional challenges to laws restricting certain types of content. The decision makers in the two countries reached quite different conclusions regarding the role that the medium should play in determining whether content restrictions are consistent with freedom of expression. However, there are certain similarities in methodology between the two countries. The United States Supreme Court (U.S.S.C.) spoke of the as a monolithic whole, expressly adopting generalized metaphors as to what the is. The decisions of the Canadian Human Rights Tribunals (C.H.R.T.) could also be read as accepting certain generalizations about the Internet, some of which while applicable to the application at issue in those cases (the World Wide Web (WWW)), may not necessarily translate to other applications in future cases.Adoption of general characterizations of the as a whole in future cases risks obscuring the distinction between the two fundamental questions of whether the can be regulated and whether it should be regulated through acceptance of assumptions that effectively mythologize the Internet as necessarily being a certain way -- often leading to the erroneous conclusion that it cannot be regulated. Assuming that the is necessarily a certain way precludes explicit consideration of factors that may affect the veracity of commonly accepted ideas about the nature of the Internet. As a result, it has been suggested that legal and policy issues relating to the may be more effectively analyzed using a layered approach. The layered methodology involves conceptualizing the in layers, promoting explicit analysis of the intersection between legal values and the notional content, applications, and logical and physical elements that determine how the is at any given point in time -- thereby reducing the risk of implicit acceptance of generalizations about the as a whole.It is not suggested that use of a layered methodology would have affected the outcome in Reno, Citron or Schnell. Rather, it is suggested that a layered methodology that includes express examination of the role of Service Providers (ISPs) within the logical (or code) layer makes explicit considerations not revealed in a monolithic approach or in a layered approach that focuses primarily on a single layer. These considerations are key to distinguishing between and answering whether content can and should be regulated. Further, consideration of certain aspects of the logical layer assists in illustrating how laws might be more effectively implemented, and suggests the possibility that the law of the least restrictive connected jurisdiction could come to dominate content regulation.The remainder of this paper is divided into four sections. Section II outlines in greater detail the decisions in Reno, Citron and Schnell. Section III describes the evolution of the layered methodology. Section IV applies the layered methodology to demonstrate that certain elements within the layers of the intersect with key facets of existing U.S. and Canadian constitutional analyses, exposing the risk of decision-making based on generalizations about the as a whole. Section V provides concluding remarks with respect to the potential contribution of the layered methodology in assessing whether content can and should be regulated.

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