Tim Lee has been taking some heat here from Richard Bennett and Steve Schultze about various aspects of his new Net neutrality paper. I haven’t had much time this week to jump into these debates, but I did want to mention one important portion of Tim’s paper that is being overlooked. Specifically, I like the way Tim took head-on some of the silly free speech arguments being put forth as a rationale for net neutrality regulation. As Tim notes in the introduction of the paper:

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.

Again, I agree wholeheartedly with all these sentiments, but I think Tim missed another important angle here when discussing the unfounded fears about corporate censorship and the misguided attempts to use free speech as a justification for imposing net neutrality regulations.

In his paper, Tim is essentially making an argument about the practicality of broadband providers acting as speech regulators — and he demolishes that assertion. But Tim fails to make an argument about the principle of the matter that is at stake here. Namely, some net neutrality supporters are attempting to convert the First Amendment into an affirmative grant of state power to regulate private entities, something it was clearly never intended to do.

Indeed, when Net neutrality supporters like the “Save the Internet Coalition” make statements like “Network neutrality is the Internet’s First Amendment,” I sometimes wonder if they are reading the same Constitution that I am. After all, the language of the First Amendment could not be more clear when it says, “Congress shall make no law…” It doesn’t contain 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.

Beginning in the 1960’s, however, a handful of liberal legal theories began concocting a new theory of the First Amendment that eventually came to be known as the “media access” school of thought. 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 — like Free Press, 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.]

Here 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. And that’s how we get 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 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 Sen. Clinton is 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.

And yet she and many other Net neutrality advocates insist that it is the private sector, not the government, that is the real threat to our free speech rights. Again, Tim Lee is correct to point out in his paper that, 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.  So, Tim is right on all those grounds.

But the principle of the matter is important, and we can’t let regulatory advocates get away with their effort convert the First Amendment into something it isn’t. As Jonathan Emord, author of the brilliant Freedom, Technology and the First Amendment, argued back in 1991, “In short, the [media] access advocates have transformed the marketplace of ideas from a laissez-faire model to a state-control model.” The real 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.”

That philosophy and regulatory approach is completely at odds with a proper understanding of the First Amendment, and yet that is exactly what many Net neutrality regulatory advocates are asking us to accept today.  The state — 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.

Stephen Schultze is an up-and-coming technology policy analyst who is a fellow at the Berkman Center for Internet and Society at Harvard University. He is also finishing up his Masters of Science in Comparative Media Studies up at MIT. He’s been kind enough to stop by here at the TLF on occasion and comment on some of the things we have written — usually to give us grief, but we welcome that too! He’s very sharp and always has something of substance to say, and he says it in a respectful way. So I look forward to many years of intellectual combat with him. (Incidentally, we also share a mutual admiration for the work of Ithiel de Sola Pool, especially his 1983 classic, “Technologies of Freedom: On Free Speech in an Electronic Age , which I have noted is my favorite tech policy book of all-time.]

Anyway, Stephen has just posted his master’s thesis: “The Business of Broadband and the Public Interest: Media Policy for the Network Society.” It’s a noble attempt to defend and extend the “public interest” concept in the Digital Age. Stephen attempts to “identify the several dimensions in which it remains relevant today.” In his thesis, Stephen cites some of my past work on the issue since I have articulated a very different view on the issue. Specifically, he cites a line of mine that I have used in multiple studies and essays on the issue:

“The public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.”

I stand by that quote and down below I have pasted a lengthy passage on the mythology surrounding the public interest standard, which I pulled directly from my old 2005 “Media Myths” book. It explains in more detail why I feel that way.

“Right now is a critical point of media in transition that will affect the shape communications ecosystem going forward,” Stephen states in his thesis. I couldn’t agree more, but I completely disagree that that somehow justifies breathing new life into a standard-less standard that justifies open-ended, arbitrary governance of the Internet and digital media. Read on to understand why I feel that way…

[The following passage is cut from Chapter 4 of Media Myths: Making Sense of the Debate over Media Ownership, 2005, p. 97-100]

[M]any policymakers continue to prop up public interest notions and regulations in the belief that they are directing the content or character of media (and broadcasting in particular) toward a nobler end; a sort of noblesse oblige for the communications age. At times, their rhetoric takes on a fairy-tale quality as lawmakers and regulators speak of the public interest in reverential and fantastic terms, all the while deftly evading any attempt to define the term. For example, while testifying before the Senate Commerce Committee in January of 2003, FCC Commissioner Michael Copps paid homage to the public interest standard:

At all times, I strive to maintain my commitment to the public interest. As public servants, we must put the public interest front and center. It is at the core of my own philosophy of government…. The public interest is the prism through which we should always look as we make our decisions. My question to visitors to my office who are advocating for specific policy changes is always: how does what you want the Commission to do serve the public interest? It is my lodestar.

That is nice rhetoric, but Commissioner Copps’ public interest “lodestar” ultimately provides little practical guidance. Public interest proponents assume that their values or objectives — which, in their opinion, are consistent with the needs and desires of the public — should ultimately triumph within the public policy arena. Consequently, volumes of government rules and speeches have been penned advocating a large and expanding role for government in terms of defining “the public interest.” But while public interest regulation has been the cornerstone of communications and media policy since the 1930s, enabling regulators to control industry structures and outcomes, at no time during these seven decades of public interest regulation has the term been defined.

Even today, efforts are made to read new powers or responsibilities into the term in order to provide regulators with the flexibility to control modern electronic media (i.e., broadcasting, cable) in ways they could not control older print media (i.e., newspaper, magazines). For example, during the late 1990s, the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters was formed by an executive order of President Bill Clinton to investigate expanding public interest obligations for television broadcasters. The group came up with numerous recommendations to impose new burdens on broadcasters, even as broadcasters struggle to remain competitive with other media outlets that are not burdened with similar public interest regulatory requirements.

Similarly, many academics have advocated a much broader role for government in dictating media outcomes. For example, even though they admit that “One of the dangers in evaluating the media in a public interest framework is that it can easily take on an elitist tone,” David Croteau and William Hoynes go on to pen an entire book dedicated to expanding public interest regulation of media. Among the expanded public interest responsibilities Croteau and Hoynes and other regulatory supporters endorse: public service announcements; expanding coverage of political campaigns, debates and developments; free (or lower-cost) campaign ad time; expanded “educational” or cultural programming (especially aimed at children); and expanded coverage of community affairs.

The problem with all this “public interest” thinking, as Ben Compaine aptly notes, is that “In democracies, there is no universal ‘public interest.’ Rather there are numerous and changing ‘interested publics.’” The viewing public is likely to have a broad array of interests and desires that cannot be adequately gauged by what five FCC commissioners believe to be in the public interest. Nobel Prize-winning economist Ronald Coase argued 40 years ago that “The phrase… lacks any definite meaning. Furthermore, the many inconsistencies in commission decisions have made it impossible for the phrase to acquire a definite meaning in the process of regulation.” That is still true today. The public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.

If you are interested in reading the rest, jump to @ page 105 in the Scribd version….