It was, it still is, but will it continue to be? Especially given the ongoing threat to “net neutrality” by telecommunications firms attempting to exert greater commercial control over the Internet and by the FCC, who, depending on your point of view, is either caving in to the desires of the telecommunications industry (Internet service providers such as Verizon and AT&T) or at least not acting aggressively enough in defense of the principle of net neutrality.

To maintain public spaces requires negotiation and regulation. The library is a public place — anyone can go in, it is maintained by public taxes — but you can’t be an excessively noisy nuisance there. The public space of the library is maintained so as to encourage reading, study, and research, but not speech making or commercial activity. In other words, the library has rules governing use. There is a whole series of court cases that, en masse, provide guidelines as to what kinds of patron behaviors are permitted in libraries. For instance, courts have consistently upheld citizens’ rights of access to information at the library, but have generally not upheld patrons’ rights to expressive activity (e.g., giving speeches, distributing pamphlets).

What about other types of public space? Can one organize a protest in a US National Park? Yes, and people may do so without a permit, according to a recent case, Boardley v. US Department of Interior (2010). The National Park Service is struggling to develop reasonable regulations that will protect visitors’ rights to a serene park visit and yet also to allow visitors’ First Amendment rights. For instance, in many parks there are designated places for protest: one cannot simply launch a protest in the middle of a hiking trail or on the top of Mt. Washington. There are understood rules, such as the fundamental understanding that you may not interfere with or obstruct another’s rights to access and recreation. You can express your political views on a car bumper sticker or on a t-shirt you wear, but not by setting up a table in the park’s visitor center.

So yes, a public space can discriminate according to type and location of activity, but it is not supposed to discriminate based on economic status. Sure, parks can have nominal use fees, but there is a strong sense that such use fees should be minimal so as to NOT exclude members of the public on the basis of economic status. (See US Senate Bill 868, Fee Repeal and Expanded Access Act of 2009, an attempt to restrict national parks from imposing “high use fees.”)

Is a closed shopping mall a public space? No, usually not — although it may be designed to resemble one. Anyone can go in, and you can even be somewhat noisy there. But it is privately owned space designed to operate as a faux public space. It might even have a “town square” or central circle. Different kinds of people can mingle there and talk. You might consider it semi-public. But usually a shopping mall is a privately owned place of commerce, maintained by a realty company for the purpose of retail sales.

Now, back to the Internet and net neutrality: Yes, the Internet has always been, up to now, a public space. But — and here’s the problem — the Internet is more than merely a public space, and there are different kinds of public spaces. The Internet is at the same time a public square, a public library, a television, a shopping mall, a newspaper, a movie theater, a game device, a virtual world, a communication medium, etc. These different kinds of spaces, which operate according to different customs and use regulations, are all present and accounted for on the Internet. Passing laws and regulations for the Internet — which we absolutely must have, can’t live without ‘em — entails defining what kind of space or thing the Internet is. And that is pretty hard to decide, given all these various models and metaphors functioning in this one technology.

Amidst the complexity, we should keep two points clearly in mind:

(1) The Internet has clearly established itself as a significant public space — both for recreation and for political expression — and whatever policies, laws, and regulations are developed should maintain and defend the public nature of the Internet as its primary quality and its primary value. In other words, public space first, shopping mall second.

(2) Public spaces share the very important quality that they do not discriminate, via use fees, on the basis of economic status. Redesigning the Internet to become two Internets — a high-priced one and a lower-priced one — clearly violates the principle of economic access that is fundamental to public space.

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