FCC Enters Parallel Universe on First Amendment & Net Neutrality Issues

by on December 15, 2009 · 20 comments

Today I visited the Federal Communications Commission meeting room to attend a workshop on “Speech, Democratic Engagement, and the Open Internet.”  Honestly, I think I was stuck in the Twilight Zone, because from what the speakers at this ridiculously one-sided panel had to say: (1) the First Amendment means something entirely different than what the Constitution says; and (2) the whole Internet world is set to go to hell unless government intervenes and saves us a litany of corporate conspiracies to “silence” us.

Seriously, I thought the FCC was trying to make their broadband workshops and Net neutrality proceeding “balanced” and “evidence-based.” This one was neither.  One speaker after another regaled us with spooky stories and asked us to imagine how their particular group or service would be “blocked” or “silenced” unless Net neutrality regulations were put on the books.  But no evidence was offered supporting their scary tales.

By the time Michele Combs of the Christian Coalition got done breathlessly delivering her conspiratorial rant, for example, I half expected her to ask “What would Jesus do?” about Internet regulation.  She really laid it on thick, suggesting that ISPs were hell-bent (excuse the pun) on blocking Christian messaging across multiple platforms.  Yeah, cause it would be a brilliant business strategy to piss off tens of millions of Christians in this country. Sure, that makes a lot of sense.

Similarly, a woman from an online video company spoke of “gatekeepers” and “filters” that were supposedly lurking around the corner that would shut her down. But no evidence was presented supporting that fear. Instead, she asked us to believe Big Brother was coming in the form of private ISPs and that the “filters” would be imposed on us were private ones, not governmental. Uh-huh.

Popular blogger Glenn Reynolds had plenty of tales of impending doom of his own as did a couple of other minority-oriented site providers who testified. Lots and lots of spooky stories were told but, again, no evidence was offered that ISPs were currently doing anything to hurt their businesses or speech.  I sure would have liked to hear Glenn at least develop a theory about why ISPs would want to block his blog and millions of others like his. After all, it’s really hard for me to understand how they’d make any money by blocking content and angering all their customers.

Then there was Jack Balkin of Yale Law School and Andy Schwartzman of the Media Access Project who, as they have always done, told us that the First Amendment was a club that government could use to basically beat private media providers into submission. (Funny, because I always thought “Congress shall make no law…” was a pretty clear statement.  But perhaps I missed some footnotes in the Constitution.) Like the other panelists, they told spooky stories of their own about how ISPs would not allow “participation” in the “new town square.”  At least Andy tried to cite some evidence to back up his scary tales, but it was the same rehashed stuff from the past. Seriously, how many times can someone say “Madison River” without getting bored?

The only thing missing from the event was an appearance by Stephen King to do a reading from his forthcoming books: “ISPs Kitten Killers” and “How Broadband Providers Stole Our Souls and Sent Us to Hell.”  Perhaps the agency can invite him next time.

The token opposition to all this insanity was Robert Corn-Revere, one of America’s greatest living defenders of the First Amendment.  Thankfully, Bob was able to take some time out of his busy court schedule – since he spends much of his life in court fighting various FCC efforts to control speech – to come to the FCC and set the record straight on the true meaning of the First Amendment and the dangers of empowering federal regulators to oversee online content more generally.  Bob cited a litany of history examples – and these would be the only actual facts that made an appearance at this particular FCC event – showing how it is GOVERNMENTS, not private actors, who have historically been the primarily threat to our freedom of speech and expression. Bob reminded the crowd that, over the past 15 years, Congress has tried continuously to impose speech controls on the Internet and impose a host of other content-based regulations.

In conclusion, I just want to repeat to those FCC officials who care: This was one of the most insanely one-sided panels I have ever seen in my life and it was in no way, shape, or form “evidence-based.”  At least panel moderator Stuart Benjamin had the courage to push back against the conspiracy theories and ask a couple hard-nosed questions to bring the semblance of balance to the event. But if our broadband plan and Net neutrality rules are built on the sort of conjectural harms, scary stories, and a completely contorted view of the First Amendment that we heard at the FCC today, then God help us all.

PS: FCC Commissioner Robert McDowell delivered some excellent remarks to kick off today’s session that are well worth reading.

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