Net Neutrality Regulation & the First Amendment

by on December 9, 2009 · 31 comments

One of the more troubling aspects of the contentious debate over Net neutrality regulation is the way some proponents have sought to cast Net neutrality as “the Internet’s First Amendment.” As a die-hard free speech advocate, I find this truly outrageous and a complete contortion of the true purpose of the First Amendment.  As I have argued here before, it is incredibly dangerous thinking that puts our real First Amendment liberties at stake by empowering a regulatory agency with more means of controlling online speech and expression. Simply stated, the Internet’s First Amendment is the First Amendment, not some new, top-down, heavy-handed regulatory regime that puts the Federal Communications Commission in control of the Digital Economy.

On this point, I wanted to bring two things to your attention. The first is an outstanding address delivered today by Kyle McSlarrow, President & CEO of the National Cable & Telecommunications Association, at a Media Institute event here in Washington, DC.  And the second is this new paper by my PFF colleague Barbara Esbin.

McSlarrow’s speech was entitled, “Net Neutrality: First Amendment Rhetoric in Search of the Constitution” and it squarely addressed the fundamental fallacy set forth by the Net neutralitistas when it comes to the First Amendment. “Whatever our present-day policy disagreements about net neutrality, or even differing politics, let’s not forget that the First Amendment is framed as a shield for citizens, not a sword for government,” he argued. “By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government,” McSlarrow said. “And… if there’s one thing the Supreme Court has made clear, it’s that rules that directly restrict protected speech cannot be justified by a government interest that is merely hypothetical.”

Absolutely correct. And these views are buttressed by the comments of Barbara Esbin in her new paper, in which she argues that “Net Neutrality is not the First Amendment for the Internet.”  She continues:

Today we live in a world with no FCC-imposed network neutrality rules. Can anyone seriously maintain that the Internet’s potential for commercial, political, artistic, and social expression has been hobbled in this country? Or that diversity is lacking? It is far more likely that the Internet has thrived, as Congress has stated, in the absence of federal or state regulation.

“Nor has the evidence, amassed after years of trying, painted a picture of persistent market failure or consumer harms,” she argues.

Turning the First Amendment on Its Head

Both she and McSlarrow note that twisted rationales for Net neutrality “turn First Amendment protections on their head” by making private platforms and actors in the enemies of speech instead of the government, which has traditionally acted to curtail speech liberties and freedom of expression. And it has succeeded at times because the government has the coercive ability to imprison, fine or otherwise punish speakers in ways that no private media or communications platform can.

There’s also the question of whether Net neutrality regulation might constitute a form of “compelled speech.” As Barbara notes, “Under traditional First Amendment jurisprudence, the government compelling a speaker to speak or transmit a message that it does not wish to transmit is just as much a free speech infringement as it is to prevent a speaker from transmitting or posting messages it wishes to transmit or post.” She cites remarks delivered at a 2007 Progress & Freedom Foundation event by noted First Amendment scholar Lawrence Tribe on this issue, in response to a question about broadband ISP control of content delivered over their networks:

The general question that raises is the extent to which the government can, in effect, force media to act as common carriers, to be transparent, to force them simply to convey whatever content comes along. To the extent that someone, or an entity, is a content provider engaging in discretion is not simply an empty pipeline. It has the fundamental right of editorial discretion. For the government to tell that entity that it cannot exercise that right in a certain way, that it must allow the projection of what it doesn’t want to include, is a violation of its First Amendment rights.

The Madness of “Media Access” Theory

All this should seem logical to anyone who has taken a look at the plain language of the First Amendment. It could not be more clear when it says, “Congress shall make no law…”  There aren’t any caveats or footnotes. And the First Amendment most certainly was not intended as a tool for government to control the editorial discretion of private individuals or institutions. It was about restricting the power of the government to curtail speech and expression.

So how did this twisted theory of the First Amendment gain currency in Net neutrality circles? To answer that you need to go back to the 1960’s when a handful of liberal legal scholars began concocting a new theory of the First Amendment that eventually came to be known as the “media access” school of thinking. George Washington University law professor Jerome A. Barron’s 1967 Harvard Law Review article, “Access to the Press — a New First Amendment Right,” as well as the work of Yale University law professor Owen Fiss, gave rise to this new intellectual movement. Its goal, in essence, was to convert the First Amendment into a club to beat demands out of private media providers. Basically, these theorists wanted to expand “Fairness Doctrine”-like right-of-reply notions to newspapers, and simultaneously grant the government more leeway to use the First Amendment to alter media structures and outputs. As Fiss argued in a 1986 law review article, under the “media access” approach, a proper reading of the First Amendment requires “a change in our attitude about the state” such that we learn “to recognize the state not only as an enemy, but also as a friend of speech… [that should act] to enhance the quality of public debate.” (Iowa Law Review, Vol. 71, 1986, p. 1416).

Other left-leaning intellectuals and activists groups would come to integrate that logic into their work and public policy proposals. Now you know, for example, where the Media Access Project gets their name!  But many other regulatory-minded groups — Free Press, Public Knowledge, the Center for Digital Democracy, MoveOn.org, New America Foundation, and others — trace much of their intellectual heritage back to Barron, Fiss, and the other media access theorists. [Read my lengthy debunking of media access theory here.]

And now we have books being written with titles like Virtual Freedom: Net Neutrality and Free Speech in the Internet Age, by Dawn Nunziato of George Washington University. I’ll have a review of Nunziato’s disturbing new book up shortly, but suffice it to say, she has taken media access theory, put it on steroids, and brought it into the Information Age.  At least the media access old-timers could more reasonably use “media scarcity” as an excuse for their regulatory machinations. But Nunziato just dispenses with all that and instead conditions all the new regulation on “democratic participation” and other amorphous theories.

Will the Real Big Brother Please Stand Up

Indeed, with Nunziato’s book, we see how the seeds of misguided intellectual thinking sometimes spring into wild gardens in which the weeds slowly take over everything in sight.  This twisted conception of the First Amendment is so thoroughly ingrained in leftist media policy thinking today that even an abundant medium like the Internet is not exempt from potential regulations based on it despite the death of media scarcity. And that’s how we got to the point we are at today in the net neutrality regulatory debate, with many policymakers and activists groups painting private broadband operators as the supposed real Big Brother problem that the First Amendment must address.

Consider, for example, the comments then-Sen. Hillary Clinton made in 2006 regarding why she supports net neutrality regulation: “Each day on the Internet views are discussed and debated in an open forum without fear of censorship or reprisal.” As I noted at the time, when I read her statement I practically fell off my chair. It’s not just that Mrs. Clinton was asking us to believe in some asinine conspiracy theory about how broadband companies are supposedly out to censor our thoughts or engage in reprisals. (”Reprisals”? For what?) No, what really blew my mind here was the fact that Sen. Clinton had the chutzpah to declare that the private sector was somehow the real threat to online speech. After all, as I inventoried in that old essay, Sen. Clinton has led several notable efforts over the past decade to expand government regulation of television, video games, and even the Internet.

Where’s the Evidence? And How Would They Even Do It?

And yet Clinton and many other Net neutrality advocates continue to insist that it is the private sector, not the government, that is the real threat to our free speech rights. Practically speaking, these advocates of Net neutrality regulation have little to fear in this regard. It is almost impossible to believe that any Internet operator could limit speech or expression in the ways these regulatory advocates fear.  Unlike the government, which possesses the coercive power to completely foreclose all speech under threat of fine or imprisonment, the private sector lacks the ability to use force to bottle up speech or speakers. And even if private operators tried it, there would be hell for them to pay with the press, industry watchdogs, and their even subscribers. More importantly, there’s just no good business angle to censorship; they make more money by delivering more bits, not fewer. Finally, any attempt by one actor to stifle something becomes a prime incentive for another to offer it.

Tim Lee nailed all these points in an excellent paper from last year, “The Durable Internet: Preserving Network Neutrality without Regulation.” Tim noted:

Concerns that network owners will undermine free speech online are particularly misguided. Network owners have neither the technology nor the manpower to effectively filter online content based on the viewpoints being expressed, nor do profit-making businesses have any real incentive to do so. Should a network owner be foolish enough to attempt large-scale censorship of its customers, it would not only fail to suppress the disfavored speech, but the network would actually increase the visibility of the content as the effort at censorship attracted additional coverage of the material being censored.

I think that’s exactly right and, later in his paper (between pgs 22-3), Tim nicely elaborates about the “Herculean task” associated with any attempt by a broadband provider to “manipulate human communication.” Not only is it true, as Tim argues, that “no widescale manipulation would go unnoticed for very long,” but he is also correct in noting that the public and press backlash would be enormous.

Shield from Government or Sword for the Government?

But let’s get back to the principle of the matter at stake here because, for those of us who cherish the real First Amendment and seek to protect it, it is essential we not let regulatory advocates get away with their effort to convert it into something it isn’t and was never meant to be.  Jonathan Emord, author of the brilliant 1991 book, Freedom, Technology and the First Amendment, put his thumb on the real threat here: “In short, the [media] access advocates have transformed the marketplace of ideas from a laissez-faire model to a state-control model.” The ultimate danger of this twisted conception of the First Amendment, he noted, is that, “It fundamentally shifts the marketplace of ideas from its private, unregulated, and interactive context to one within the compass of state control, making the marketplace ultimately responsible to government for determinations as to the choice of content expressed.”  Or as Kyle McSlarrow noted in his speech today, these regulatory advocates are essentially saying that the First Amendment “a sword for government” instead of “a shield for citizens” from coercive government actions that would infringe our legitimate rights of free speech and expression.

In sum, “media access” philosophy and the regulatory approach its adherents counsel  is completely at odds with a proper understanding of the First Amendment.  Government — not the private sector — remains the true threat to our liberties.  And, most horrifyingly of all, empowering the state to use the First Amendment to regulate private actors will almost certainly backfire and result in more, not less, regulation of speech online.

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

    Great post Adam

  • http://srynas.blogspot.com/ Steve R.

    What about the attempts of private sector to control the free flow of information and to even read (spy) your mail (packets)? Most of these oppressive government regulations are at the behest of zombie regulators doing the bidding of their private sector “masters”. The role of the private sector in buying special interest regulations requires exposure too. Simply laying blame on the “government” is simplistic and ignores how the the “oppressive” regulations are actually put into effect.

    Kicking People Off The Internet Not Enough In South Korea, Copyright Lobbyists Demand More

    Mike writes: “Of course not. Reader Dan alerts us to the news that some entertainment industry lobbyists are now demanding that all file sharing services must use content filters. Otherwise, they plan to sue. Just another reminder that for some of these folks, enough will never be enough. They will keep pushing for more and more, just as consumers keep pushing back on having their own rights stripped away.”

    How The Entertainment Industry 'Launders' Policy Pronouncements.

    Mike writes: “It's no secret that a great deal of regulations and policies are really written and pushed by lobbyists, and politicians just put their own names on it.”

    When the private sector attempts to frustrate freedom of speech, their involvement in the development of “oppressive” regulations requires scrutiny.

  • mwendy

    Good post, Adam. Sadly, I think the politics of the situation have gotten in the way of the Constitution's clear limitation (but, as you point out, this is old hat for regulators). Facilities-providers aren't the “bad guys”; the default position of the 1st Amendment reveals the opposite – that the government players are instead.

    By saying that no (or only limited) discrimination can be tolerated on ISP networks, the Commission denies protected speech of those network operators (not to mention denies them 5th Amendment compensation).

    The speech regulators seek to foster by this prohibition cuts to the core of our society – open and robust political speech / civic particpation. If it were otherwsie – say, promoting advertising, or porn – then they couldn't mount, from an optical / PR and legal sense, the battle needed to overcome the 1st Amendment prohibition.

    Interestingly, this push could be the FCC's downfall – i.e., unlike “Turner” or “O'Brien” speech (lesser 1st Amend standards), I think the new rules demand strict scrutiny, with the speech pushed by the Commission far from content neutral.

    Strict scutiny is hard on its own, but even harder based on conjecture. In just paragraphs 70 – 73 of the Net Neut NPRM, the FCC uses the conditional term for the harm that may result without their rules 15 times. This is all conjecture and prophylaxis. How do you impose content regulations without a market failure (or, stated differently – when the market has exploded with options and viewpoint)?

    How? You do it by making the facilities / verically integrated-based provider smell like (bad word deleted).

  • haroldfeld

    I know I will hate myself for asking, but I will anyway. Do you feel the same way about all common carrier and interconnection requirements? For example, can AT&T refuse to connect my phone call to a mosque because they consider it a source of hate speech or against their religious principles? Was the FCC's decision to require Madison River to complete a VOIP call likewise a First Amendment violation? Or is provision of data service somehow different from voice?

  • mwendy

    To some extent yes and no. Yes – last mile carriers aren't compensated for all the costs of terminating of calls. But, no – it's part of the common carrier regulation / obligations; at least there's some compensation for telecommunications / POTs service. AT&T cannot refuse your telecommunications call to that mosque.

    Madison River was a consent decree, if memory serves. So, it's hard to say exactly what that was about in 1st Amendment terms / FCC authority (maybe Adam can add here).

    If by data you mean information services – they see different regulation than strictly voice / POTs / telecommunications. The latter (voice, etc.) is regulated under common carrier regulation / Title II (as noted above). Information services do not share the same regulatory scheme; info services essentially sit outside of the onerous Title II regulation (they're largely, though not entirely, unregulated) and this is what the FCC is currently debating in its Net Neut proposed rules.

  • http://srynas.blogspot.com/ Steve R.

    Regretfully things are not “simple”. Here is one of many such examples: AT&T complains Google Voice blocks calls it can't (Update). The take away from this article is that word games are being played. The article writes: “AT&T said that Google should not be exempt from the ban because Google Voice “appears to be nothing more than a creatively packaged assortment of services that are already quite familiar to the commission.””.

    I couldn't resist another example since it deals with AT&T blocking: “Group Calls Foul on AT&T Blocking Some iPhone Video Apps

    Also, in terms of Adam's post, note that these companies are imploring the “mother” regulator to act on their behalf. So I find is awkward that this forum seems to have only have blame the regulator posts when it is the companies purposely and willfully elbowing each other to limit the customers free speech.

  • mwendy

    Steve, free speech is largely a right against the government. Generally (with many exceptions, of course), the 1st Amendment isn't as readily applicable when private-to-private expressions are involved. Think about you insisting to an art gallery (which you do not own) that they hang your piece of art. They're free to say no. And the government can do little about it.

    Free speech in the present context is more a function of serving the marketplace – companies, with their own unregulated, private facilities choose to allow all comers because it makes business sense. The market implores them to do so.

    The present NPRM seeks to compel speech without compensation. In denying the ability of facilites-based ISPs to deny others (if they wanted to), it belittles the rights of the private property / network owner to express as he or she sees fit (which may, or may not, include hosting unaffiliated third-parties).

  • http://srynas.blogspot.com/ Steve R.

    I will agree with the Art Gallery example where there is a clear “entry fee” and a physical door. I will also acknowledge that free speech is an entitlement from government interference. However, from my point of view, there is a whole body of people who seem to believe that their control of private property somehow entitles them to arrogantly abuse their privilege even to the point of interfering with the property rights of others. For example, when I go to UPS of FedEX, I expect them to deliver the my private property right package unopened and on-time. Based, on a lot that I read, from those opposed to net neutrality, UPS and FedEx would be in their so-called “rights” to simply toss my package in the trash if they don't like it, they are under no obligation to deliver the package, and if they want they can tear it open and inspect the contents. I find Julian Sanchez “The Virtual Fourth Amendment” to be an excellent read on this.

    What I find particularly disturbing is that one of the mottoes of Libertarians is to do no harm to others. Yet, we have (Libertarian???) advocates who feel perfectly justified in harming others by depriving them of expected service/property rights to protect their property interests. Do you have a right to break into someone's house with out permission just to see, on a whim, if they may have stolen property? Witness the demands of the RIAA to filter (read) the datastream (mail). While things, such as due process and free speech, are citizen entitlements against government interference, the abuse of these concepts by private sector should not be tolerated.

  • mwendy

    I'll give it a read – it's the story directly above this one.

  • mwendy

    Steve, free speech is largely a right against the government. Generally (with many exceptions, of course), the 1st Amendment isn't as readily applicable when private-to-private expressions are involved. Think about you insisting to an art gallery (which you do not own) that they hang your piece of art. They're free to say no. And the government can do little about it.

    Free speech in the present context is more a function of serving the marketplace – companies, with their own unregulated, private facilities choose to allow all comers because it makes business sense. The market implores them to do so.

    The present NPRM seeks to compel speech without compensation. In denying the ability of facilites-based ISPs to deny others (if they wanted to), it belittles the rights of the private property / network owner to express as he or she sees fit (which may, or may not, include hosting unaffiliated third-parties).

  • http://srynas.blogspot.com/ Steve R.

    I will agree with the Art Gallery example where there is a clear “entry fee” and a physical door. I will also acknowledge that free speech is an entitlement from government interference. However, from my point of view, there is a whole body of people who seem to believe that their control of private property somehow entitles them to arrogantly abuse their privilege even to the point of interfering with the property rights of others. For example, when I go to UPS of FedEX, I expect them to deliver the my private property right package unopened and on-time. Based, on a lot that I read, from those opposed to net neutrality, UPS and FedEx would be in their so-called “rights” to simply toss my package in the trash if they don't like it, they are under no obligation to deliver the package, and if they want they can tear it open and inspect the contents. I find Julian Sanchez “The Virtual Fourth Amendment” to be an excellent read on this.

    What I find particularly disturbing is that one of the mottoes of Libertarians is to do no harm to others. Yet, we have (Libertarian???) advocates who feel perfectly justified in harming others by depriving them of expected service/property rights to protect their property interests. Do you have a right to break into someone's house with out permission just to see, on a whim, if they may have stolen property? Witness the demands of the RIAA to filter (read) the datastream (mail). Also, why should I have respect for an abusers property rights if they feel justified in depriving me of my property rights. It a slippery slope. While things, such as due process and free speech, are citizen entitlements against government interference, the abuse of these concepts by private sector should not be tolerated.

  • mwendy

    I'll give it a read – it's the story directly above this one.

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