Randy May On Neutering the First Amendment

by on September 21, 2006 · 20 comments

Supporters of neutrality regulation often claim the mantle of defenders of free speech. Even the pending Senate telecom bill–which largely avoids comprehensive neutrality rules–includes a section on “Application of the First Amendment,” stating that no ISP may limit content based on “religious views, political views, or any other views expressed in such content.”

The problem, however, is that the First Amendment covers governmental, not private restrictions on speech. Moreover, as Randy May of Maryland’s Free State Foundation argues this week in Broadcasting and Cable magazine, such limits may violate–rather than further–First Amendment principles. As he points out:

Under traditional First Amendment jurisprudence, it is as much a free-speech infringement to compel an entity to convey messages it does not wish to convey as it is to prevent it from conveying messages it wishes to convey.

Going farther, he says that:

….When you think about it, laws imposing “neutrality” are eerily reminiscent of the defunct Fairness Doctrine that required broadcasters to present a balanced view of controversial issues.

The last point is particularly interesting. Given that a fair number of neutrality regulation proponents have also argued for the Fairness Doctrine, one wonders if they would disagree with the comparison.

A fuller version of May’s argument was published by the Free State Foundation here. Worth reading.

  • http://www.techliberation.com/ Tim Lee

    I don’t think I find this argument persuasive. The problem with the fairness doctrine was that airtime is limited, and so it put the FCC in the position of deciding how much content from viewpoint X was required to make a given presentation “fair.” You don’t really have that problem here, as the content is chosen entirely by users, and as a practical matter there’s no limit to the number of web pages that can be served up.

    Or, to look at it from a different perspective, the content NBC puts on its nightly news program is clearly NBC’s speech. Hence, if you regulate what content NBC can or can’t put on its program, you’re telling NBC what it can say through the soapbox of the airwaves. In contrast, I don’t think that anyone would claim that when a Comcast customer reads TLF, TLF is Comcast’s speech. They’re clearly just conveying the speech of a third party. So as long as Comcast isn’t required to practice “neutrality” with respect to its own website, I don’t see this as a First Amendment issue.

  • James Gattuso

    Tim — interesting. In a way, it sounds like a reverse scarcity doctrine — i.e. you can regulate content as long as there is no scarcity. I’m not sure, though, how you get past Tornillo, which held that newspapers can’t be required to publish opposing sides of an issue. In that case, it was also clear that the opposing views the newspaper involved would be required to print was someone else’s, not their own. That didn’t matter — the First Amendment prohibits the state from requiring you to publish any particular views, regardless of whether they are yours or someone elses.

    Moreover,, there’s no natural limit to the number of pages of a newspaper. Of course, there’s a marginal cost to making a newspaper larger, but its not a hard limit like TV.

    In any case, basing content controls on whether an outlet has room for the additional, mandated, content seems at odds with my concept of free speech. I don’t see the government having a right to require me to publish (or not publish) any particular content, even if it virtually costless for me to do so. Its a matter of rights, not feasibility.

  • http://www.techliberation.com/ Tim Lee

    I don’t think I find this argument persuasive. The problem with the fairness doctrine was that airtime is limited, and so it put the FCC in the position of deciding how much content from viewpoint X was required to make a given presentation “fair.” You don’t really have that problem here, as the content is chosen entirely by users, and as a practical matter there’s no limit to the number of web pages that can be served up.

    Or, to look at it from a different perspective, the content NBC puts on its nightly news program is clearly NBC’s speech. Hence, if you regulate what content NBC can or can’t put on its program, you’re telling NBC what it can say through the soapbox of the airwaves. In contrast, I don’t think that anyone would claim that when a Comcast customer reads TLF, TLF is Comcast’s speech. They’re clearly just conveying the speech of a third party. So as long as Comcast isn’t required to practice “neutrality” with respect to its own website, I don’t see this as a First Amendment issue.

  • http://www.freestatefoundation.org Randolph May

    Tim- In effect, you are just arguing that all broadband providers should be required to be common carriers required to carry all content indifferently. The government possibly, but not necessarily, could impose common carriage obligations on cable broadband ISPs consistent with the Constitution. But I don’t think we want to do that in today’s more competitive, technologically dynamic environment.

    Consistent with free speech, why should a broadband ISP have to carry TLF if the ISP prefers not to? What if TLF wants to start a cable channel? Would you want Time Warner to be required by the government to carry it? Or should Time magazine be required to carry TLF material? In today’s environment, broadband IPS are much closer to Time Warner and Time than to the broadcasters in the 60s when the Supreme Court affirmed the Fairness Doctrine on the basis of spectrum scarcity.

    Compelled access–like that required in Tornillo–is under traditional First Amendment jurisprudence just as much as free speech violation as restrictions on speech. Net Neutrality mandates compel conveyance of speech the ISPs may prefer not to carry.

    All of this is spelled out at much greater length than I could do in the B&C article at:

    http://www.freestatefoundation.org/images/Net_Neutrality_Mandates-Neutering_the_First_Amendment.pdf

  • James Gattuso

    Tim — interesting. In a way, it sounds like a reverse scarcity doctrine — i.e. you can regulate content as long as there is no scarcity. I’m not sure, though, how you get past Tornillo, which held that newspapers can’t be required to publish opposing sides of an issue. In that case, it was also clear that the opposing views the newspaper involved would be required to print was someone else’s, not their own. That didn’t matter — the First Amendment prohibits the state from requiring you to publish any particular views, regardless of whether they are yours or someone elses.

    Moreover,, there’s no natural limit to the number of pages of a newspaper. Of course, there’s a marginal cost to making a newspaper larger, but its not a hard limit like TV.

    In any case, basing content controls on whether an outlet has room for the additional, mandated, content seems at odds with my concept of free speech. I don’t see the government having a right to require me to publish (or not publish) any particular content, even if it virtually costless for me to do so. Its a matter of rights, not feasibility.

  • http://www.techliberation.com/ Tim Lee

    Guys,

    I’m not arguing that regulation is a good idea. I just don’t think the First Amendment is a very persuasive basis for opposing it. The point of the First Amendment is to prevent the state from having editorial control over public discourse. When the state compells a newspaper to print a particular article, it prevents that newspaper from printing another article in its place, thereby skewing the marketplace of ideas. Similarly, if the state mandates that a guests with a particular viewpoint must appear on a particular television program (the “fairness” doctrine) that prevents the program from featuring some other guest during that time slot, thereby skewing the marketplace of ideas toward the views of that particular guest. In the case of both newspapers and television programs, “run everything” isn’t an option: there is an effectively unlimited number of people who would like their articles in the New York Times and their mugs on the nightly news. In practice, “fairness” mandates substitute the judgment of the state for the judgment of private editors.

    I think it’s hard to make a similar argument about the Internet. “Run everything” actually is an option. In fact it’s the policy in the overwhelming majority of cases. Hence, under network neutrality regulations wouldn’t involve the government second-guessing the editorial decisions of ISPs. It would simply prohibit ISPs from exercising editorial control at all.

    I just don’t think it makes very much sense to think of a broadband ISP as a publisher. TLF is edited by its contributors and published by PJ Doland web design. The ISP the user uses to access TLF isn’t an editor or a publisher. I don’t think what they do constitutes expressive activity, any more than FedEx is engaging in speech when it delivers somebody a magazine. Regulations requiring shippers to deliver packages without regard to their contents wouldn’t be good policy, but I think it’s a stretch to call it censorship.

  • http://www.freestatefoundation.org Randolph May

    Tim- In effect, you are just arguing that all broadband providers should be required to be common carriers required to carry all content indifferently. The government possibly, but not necessarily, could impose common carriage obligations on cable broadband ISPs consistent with the Constitution. But I don’t think we want to do that in today’s more competitive, technologically dynamic environment.

    Consistent with free speech, why should a broadband ISP have to carry TLF if the ISP prefers not to? What if TLF wants to start a cable channel? Would you want Time Warner to be required by the government to carry it? Or should Time magazine be required to carry TLF material? In today’s environment, broadband IPS are much closer to Time Warner and Time than to the broadcasters in the 60s when the Supreme Court affirmed the Fairness Doctrine on the basis of spectrum scarcity.

    Compelled access–like that required in Tornillo–is under traditional First Amendment jurisprudence just as much as free speech violation as restrictions on speech. Net Neutrality mandates compel conveyance of speech the ISPs may prefer not to carry.

    All of this is spelled out at much greater length than I could do in the B&C; article at:

    http://www.freestatefoundation.org/images/Net_N

  • http://metapundit.net/sections/blog metapundit

    Quote:

    that no ISP may limit content based on “religious views, political views, or any other views expressed in such content.”

    What? Maybe I’m misunderstanding this, but wouldn’t this disallow an ISP from offering a filtered service? Say I’m a “Christian ISP” and I want to filter out any content disrespectful of Christianity or pro-satanist or whatever, and offer this as a service. Would this telecom bill criminalise such a plan?

  • http://www.techliberation.com/ Tim Lee

    Guys,

    I’m not arguing that regulation is a good idea. I just don’t think the First Amendment is a very persuasive basis for opposing it. The point of the First Amendment is to prevent the state from having editorial control over public discourse. When the state compells a newspaper to print a particular article, it prevents that newspaper from printing another article in its place, thereby skewing the marketplace of ideas. Similarly, if the state mandates that a guests with a particular viewpoint must appear on a particular television program (the “fairness” doctrine) that prevents the program from featuring some other guest during that time slot, thereby skewing the marketplace of ideas toward the views of that particular guest. In the case of both newspapers and television programs, “run everything” isn’t an option: there is an effectively unlimited number of people who would like their articles in the New York Times and their mugs on the nightly news. In practice, “fairness” mandates substitute the judgment of the state for the judgment of private editors.

    I think it’s hard to make a similar argument about the Internet. “Run everything” actually is an option. In fact it’s the policy in the overwhelming majority of cases. Hence, under network neutrality regulations wouldn’t involve the government second-guessing the editorial decisions of ISPs. It would simply prohibit ISPs from exercising editorial control at all.

    I just don’t think it makes very much sense to think of a broadband ISP as a publisher. TLF is edited by its contributors and published by PJ Doland web design. The ISP the user uses to access TLF isn’t an editor or a publisher. I don’t think what they do constitutes expressive activity, any more than FedEx is engaging in speech when it delivers somebody a magazine. Regulations requiring shippers to deliver packages without regard to their contents wouldn’t be good policy, but I think it’s a stretch to call it censorship.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    I agree largely with Tim Lee.

    It is the wrong analogy to compare this to broadcast speech–I would compare it to regulation on the highways, which does not allow ‘content based’ filtering of content, except in the basis of certain safety regs (hazardous substances).

    Also, the First amendment Rights of individual people vs. corporations is at issue here, and although I fully understand the current case law is against me on this, commercial speech of corporations should be less protected then an individual’s speech.

  • http://metapundit.net/sections/blog metapundit

    Quote:

    that no ISP may limit content based on “religious views, political views, or any other views expressed in such content.”

    What? Maybe I’m misunderstanding this, but wouldn’t this disallow an ISP from offering a filtered service? Say I’m a “Christian ISP” and I want to filter out any content disrespectful of Christianity or pro-satanist or whatever, and offer this as a service. Would this telecom bill criminalise such a plan?

  • http://enigmafoundry.wordpress.com eee_eff

    I agree largely with Tim Lee.

    It is the wrong analogy to compare this to broadcast speech–I would compare it to regulation on the highways, which does not allow ‘content based’ filtering of content, except in the basis of certain safety regs (hazardous substances).

    Also, the First amendment Rights of individual people vs. corporations is at issue here, and although I fully understand the current case law is against me on this, commercial speech of corporations should be less protected then an individual’s speech.

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