The First Amendment & Net Neutrality: Be Careful What You Wish For

by on December 17, 2009 · 6 comments

Robert Corn-RevereAs I noted here a few days ago, the Federal Communications Commission held a workshop on Tuesday about “Speech, Democratic Engagement, and the Open Internet.”  It was a shockingly one-sided affair with the deck being stacked almost entirely in favor of advocates of Net neutrality regulation. Worse yet, those advocates shamelessly made up spooky stories about a future of “private censorship” that could only be remedied by using the First Amendment as a club to beat private players into submission. The token opposition at this Chicken Little circus was Robert Corn-Revere, a Partner at the law firm of Davis Wright Tremaine LLP in Washington, D.C.   Bob set the record straight–both in terms of baseless accusations that were flying that day as well as the revisionist histories of the First Amendment that were being put forward. I’m happy to report that Bob allowed PFF to reprint his remarks as a new white paper entitled, “The First Amendment, the Internet & Net Neutrality: Be Careful What You Wish For.”

In his essay, Corn-Revere discusses the relationship between the First Amendment and regulatory policy, particularly the treatment of new communications technologies, and he warns that government regulation of broadband networks could “provide the vehicle for advancing new First Amendment theories for media regulation” and online speech and expression more generally.  “It should not be forgotten,” he argues, “that the federal government’s initial impulse was to censor the Internet and to subject it to a far lower level of First Amendment protection. It pursued this agenda for more than a decade but was blocked by a series of First Amendment rulings.”  The Communications Decency Act and the Child Online Protection Act are just two notable examples. Luckily, the courts determined that “the open Internet would be at great risk if the government is allowed to exercise such power,” he notes, and they struck down such laws.

But we must be vigilant in defending our free speech rights, Corn-Revere warns. He notes that, “the constitutional ramifications of the network neutrality debate extend far beyond the question of whether the FCC should or should not adopt a given set of rules. On a doctrinal level the question is whether technological convergence should also lead to regulatory convergence, where the least common denominator of First Amendment protection becomes the governing rule.”

The First Amendment, the Internet & Net Neutrality: Be Careful What You Wish For” is available on the PFF website and can also be viewed down below in a Scribd document reader. I want to also recommend that everyone take a look at the brief remarks that FCC Commissioner Robert McDowell delivered at the opening of that FCC event that Corn-Revere spoke at. “Efforts to advance ‘First Amendment values’ through additional government regulation risks turning over two hundred years of First Amendment jurisprudence on its head,” McDowell rightly argued. And that’s also consistent with the outstanding address delivered last week by Kyle McSlarrow, President & CEO of the National Cable & Telecommunications Association, on the same issue, in which he correctly noted that, “the First Amendment is framed as a shield for citizens, not a sword for government.” “By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government,” McSlarrow said.

Thank God a few people in this town are still taking a stand for the real First Amendment.

Robert Corn-Revere Remarks at FCC Workshop on Speech and Democracy

  • http://www.thecablepipeline.com/ Leonard Grace

    I am continuing to research both sides of this issue. Yes, my website includes a piece that questions the Cable Industry's strategy in using The First Ammendment as a tool to make its case against creating a more regulatary environment under Net Neutrality. The link to Robert Corn-Revere's PPF is enlightening and significant, looking back at the history of regulation.

    As always, significant competition is the highway to avoid regulation. The fear that permiates through the public and private sectors of current pipeline providers is one of control, which seems too powerful to be left of its own devices, with to many opportunities to create imbalances in competition.

    The industry has been too successful in creating a platform that controls too many avenues regarding speech, including access to it, and at the same time, responsible for the proliferation of widely varied pay content in promoting free speech.

    How does an industry convince regulators and the courts that they will be stewards of unfettered competition and free speech, when just their size brings unwanted criticism? There is fear, justified or not, that pulls the FCC in the direction of regulation while seemingly unable effect the wide-spread and systematic competition that consumers demand.

  • http://www.thecablepipeline.com/ Leonard Grace

    I am continuing to research both sides of this issue. Yes, my website includes a piece that questions the Cable Industry's strategy in using The First Ammendment as a tool to make its case against creating a more regulatary environment under Net Neutrality. The link to Robert Corn-Revere's PPF is enlightening and significant, looking back at the history of regulation.

    As always, significant competition is the highway to avoid regulation. The fear that permiates through the public and private sectors of current pipeline providers is one of control, which seems too powerful to be left of its own devices, with to many opportunities to create imbalances in competition.

    The industry has been too successful in creating a platform that controls too many avenues regarding speech, including access to it, and at the same time, responsible for the proliferation of widely varied pay content in promoting free speech.

    How does an industry convince regulators and the courts that they will be stewards of unfettered competition and free speech, when just their size brings unwanted criticism? There is fear, justified or not, that pulls the FCC in the direction of regulation while seemingly unable effect the wide-spread and systematic competition that consumers demand.

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