Vol. 13 No. 4 (April 2003)

SORTING OUT DEREGULATION: PROTECTING FREE SPEECH AND INTERNET ACCESS IN THE UNITED STATES, GERMANY, AND JAPAN by Jae-Young Kim. New York: LFB Scholarly Publishing LLC, 2002.196 pp. ISBN: 1-931202-37-0

Reviewed by Ann Bartow, University of South Carolina School of Law, University of South Carolina. Email: Bartow@law.sc.edu

“Sorting out deregulation” is a fairly tall order. As Jae-Young Kim articulates in Chapter 1, this book examines the effects of telecommunications deregulation on universal service and free speech on the Internet, both deemed significant public goods in the United States, Germany and Japan. Addressing this complex topic in the context of three different nations in a mere 150 pages of text suggests only an overview of the issues was intended.

Using political economy as its stated theoretical framework, the book describes the history of telecommunications deregulation in the United States, Germany, and Japan, explains ways in which telecommunications deregulation has affected universal access and free speech on the Internet, and articulates a vision of a government-constructed electronic democracy. The histories of each of the three studied countries are reported to be very different. In briefly recounting them, the author suggests that competition, which regulated monopolies illegitimately tried to squelch, generally resulted in increased innovation in the various telecommunications industries. Thus, one of the author’s underlying assumptions is that deregulation leads to increases in new services and decreases in consumer prices, and is, accordingly, “the logical outcome of a liberal market philosophy” (p. 55).

The author defines “political economy” as “a means of understanding the specific facet of society from the social whole” which also “seeks to identify relationships that prevail in the entire social arena” (p. 27), and articulates a somewhat grandiose and overly optimistic picture of the manner in which political economy avoids the ascribed pitfalls of other analytical approaches, such as public interest theory, the “economistic view,” public choice theory, and normative theory. The author asserts that political economy  explores the social whole, including “political, social, and economic factors, and forces that mutually constitute the policy-making process” (p. 32). It “postulate[s] a hierarchy of determinations and a related hierarchy of analytical priorities” (p. 32), and is centrally concerned with “the normative or moral domain” (p. 32). The stated objectives of the specific project are to “chart the shifts in balance between the market and the government after deregulation,” and “to trace its impact on public interest values such as universal service and free speech” (p. 33). Though framed as a “study,” it is largely descriptive in nature.

After a brief survey of political economy research on telecommunications, the methodology of the study described by the bulk of the text is thoughtfully laid out – perhaps a bit self-consciously – with an abundance of definitions and qualifications. The author then summarizes factors asserted to drive deregulatory movements in telecommunications that all appear to reflect a belief that deregulation leads to efficiency, competitiveness, and enhanced innovation. However, beginning with the chapter devoted to the concept of universal service on the Internet, that, it is asserted, is of immense social value, the author notes that in the U.S., deregulation led to market consolidation and inadequate competition, which in turn increased prices, and correspondingly decreased affordability, undermining progress toward universal service. Germany was also reported to lag in its efforts toward universal access due to a paucity of competitive forces. Japan, however, is declared to empower its government to regulate market forces actively and pursue a universal service policy with some success.

The chapter addressing free speech on the Internet correctly notes that courts in the U.S. have fairly consistently held that privately owned Internet Service Providers (ISPs) can censor speech on the Internet, but the U.S. Government cannot. Asserting that “the Internet has many of the characteristics of the traditional public forum,” the author at first seems unduly optimistic that the limited public forum analysis of the PRUNEYARD SHOPPING CENTER case will spread to cyberspace. The author describes the result in PRUNEYARD as a decision that “owners of private property could be constitutionally required to open up their property to speech they would rather not have expressed” (p. 110). The fact that PRUNEYARD’s holding was premised on provisions of the California Constitution rather than on the U.S. Constitution is not brought to the reader’s attention and should have been. Later, with little explanation, it is asserted that deregulation allows commercial ISPs to maximize their private interests at the expense of freedom of speech, but the author then states in a chapter section labeled “Summary and Conclusion” that “The American case has noted the proverbial “chilling effect” of commercial providers’ censorship on free speech and has emphasized that public forum status should be accorded to the Internet so as to enhance the diversity of discourse in this new electronic environment.” If the author is making a policy recommendation, this is certainly supportable, but if it is intended to be a description of current American law and policy, it is quite incorrect.

Germany is reported to favor regulation in order to ensure high quality discourse forums and attempts to apply its speech laws to the Internet with limited success due to technological route-around capabilities built into the current architecture of cyberspace. By contrast, in Japan the government simply persuades service providers to regulate content in accordance with societal norms of morality. This “policy combining deregulation with sensible government intervention within the boundary of cultural tradition” is embraced by the author as a superior approach.

The author does a thorough job of road-mapping each chapter and the book as a whole. The reader learns a lot about the “political economy” approach to analyzing government regulation, and a fair amount about the history of telecommunications development in the three studied countries. The book is filled with many extensive descriptive passages concerning political science theories, court cases, and historical developments which are very interesting, though on a few occasions not entirely accurate. For example, the author states that C. Edwin Baker “is classified as a leading modern proponent of the marketplace tradition” (p. 106). In fact, Baker’s book, HUMAN LIBERTY AND FREEDOM OF SPEECH (1989), articulates a liberty theory of freedom of speech and contests the “marketplace of ideas” theory of the First Amendment.

The work attempts to cover such a broad and complicated topic that coverage seems unduly superficial at points. Additionally, it is sometimes difficult to discern when the author is making independent conclusions rather than stating the conclusions of others. It would have benefited from more careful editing and fact checking. Still, the similarities and contrasts between the regulatory approaches of the United States, Germany, and Japan toward the Internet are fascinating to consider, and the engaged reader comes away from the book with a new or renewed understanding of the importance of considering government regulation from a variety of sources and vantage points.

REFERENCES:

Baker, C. Edwin.  1989.  HUMAN LIBERTY AND FREEDOM OF SPEECH.  New York, NY: Oxford University Press.

CASE REFERENCES:

PRUNEYARD SHOPPING CENTER v. ROBINS, 447 U.S. 74 (1980).

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Copyright 2003 by the author, Ann Bartow.