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,, 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.

Previous post:

Next post: