Asaf Wiener (Tel Aviv University, Buchmann Faculty of Law) has posted Constitutional Legitimacy of Media Law and Policy in the 21st Century: Bridging the Ideological Divide of Free Speech Jurisprudence on SSRN. Here is the abstract:
This Paper aims to supply policymakers and judicial review with an ideological-neutral framework for evaluating the legitimacy of imposing public-interest duties on today's dominant forms of mass media, such as Netflix, YouTube or Facebook. In contrast to the current literature, which often advocates for adopting either a libertarian or a distributive position about communication policy and free speech jurisprudence, the paper suggests that both would benefit from a plural, fact-based methods of review for understanding and evaluating the various sources of legitimacy with regard to both 'old' and 'new' media regulation.
The first part of the Paper begins by adopting a socio-historical perspective to taxonomize the consensual sources for legitimizing media regulation within the public interest framework. By unraveling the various rationales and justification, it further it examines their theoretical and practical applicability to contemporary debates about the constitutional permissibility of regulating Internet-based content providers and platforms. The second Chapter suggests that although both utilitarian-economic and egalitarian-democratic reasons for traditional media regulation can generally be applied to new forms of commercial media, free speech jurisprudence lacks sufficient consensus about the conditions for legitimacy and suffer from two primary flaws: (a) lack of rationality or basis in social facts; and (b) lack of sensitivity to the hidden costs of media regulation within the public interest framework (liberty and equality compromise diversity; liberty and diversity compromise equality; equality and diversity compromise liberty).
In response, this Paper bridges today's ideological divides – over media regulation and free speech jurisprudence alike – by suggesting common grounds for instrumental review of media law and policy, which both libertarian and egalitarian ends of the post-liberal spectrum can agree on.