As 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://d1.scribdassets.com/ScribdViewer.swf?document_id=24208240&access_key=key-2h2o9rho7g9qr414utqi&page=1&version=1&viewMode=list

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.

Readers of Tech Liberation Front may be interested in a new breakfast series that BroadbandCensus.com has recently begun.

The next event in this series, “Should Government Funding Be Part of a National Broadband Plan?” will be held on Tuesday, November 18, from 8 a.m. to 10 a.m., and will include Stan Fendley, the director of legislative and regulatory policy for Corning, Inc., Kyle McSlarrow, CEO of the National Cable and Telecommunications Association (NCTA), and John Windhausen, Jr., president of Telepoly Consulting. I will moderate the discussion.

Two weeks after Election Day, this Broadband Breakfast Club meeting will consider one of the hottest topics in telecom: can and should funding for broadband work its way into a pending fiscal stimulus package?

Future meetings of the breakfast club (December 2008 through March 2009) will consider the role of broadband applications in harnessing demand, how the universal service fund will be changed by high-speed internet, the role of wireless in universal broadband, and the extent of competition in the marketplace.

The Broadband Breakfast Club meets monthly at the Old Ebbitt Grill, at 675 15th Street, NW, in Washington. (It’s right across the street from the Department of the Treasury.)

Beginning at 8 a.m., an American plus Continental breakfast is available downstairs in the Cabinet Room. This is followed by a discussion about the question at hand, which ends at 10 a.m. Except for holidays (like Veteran’s Day), we’ll meet on the second Tuesday of each month, until March 2009. The registration page for the event is http://broadbandbreakfast.eventbrite.com.

Because of the limited size of the venue, seated attendance will be reserved the first 45 individuals to register. There are no restrictions on who may register to attend. With the exception of speakers, there is a $45.00 charge (plus a modest Eventbrite fee) to attend. The events are on the record.

We kicked off this series earlier this month with a well-attended breakfast on “10 Years Under the Digital Millennium Copyright Act: Success or Failure?”

I started the Broadband Breakfast Club for the same reason that I started BroadbandCensus.com earlier this year: I believe that American consumers, policy-makers and broadband providers need better information about the issues surrounding high-speed internet access.

Today, broadband is (or could) the driver of citizen engagement, commerce, democratic participation, education, entertainment, health care and potential environmental gains through wider telecommuting. And yet basic information about where particular broadband company offers service – and at what price and at what speed – is not conveniently available in a single, public source. The free web service BroadbandCensus.com aims to change that by going directly to individual internet users for their feedback.

Our Broadband Breakfast Club series is directed more at Washington policy-makers and influencers. But again, we are seeking to broaden the discussion by allowing all to participate. The goal of this breakfast series is to bring an informed consensus – or, failing that, an informed disagreement – around key broadband policy questions.

With the dawn of a new administration – and the prospect of a systematic approach to high-speed internet issues for the first time in nearly a decade – now is the time to undertake these discussions.

Further, the breakfast events that we’re hosting now will lead up to our Spring 2009 conference, “Broadband Census for America: The New Administration.” The Spring 2009 conference – bringing together federal, state and local officials, academic researchers and other interested parties around the issue of broadband data – is tentatively scheduled for Friday, March 27, 2009, here in Washington.

If you have questions or thoughts about upcoming events in the Broadband Breakfast Club series, or about the Spring 2009 conference, “Broadband Census for America: The New Administration,” or about BroadbandCensus.com in general, feel free to contact me: drew at broadbandcensus.com, or at 202-580-8196.

As with everything on BroadbandCensus.com, this blog post is under our Creative Commons Attribution Noncommercial License. That means you can copy, send, repost and redistribute it. Please do so! The URL for this post is http://broadbandcensus.com/blog/?p=923, and the URL for the registration page is http://broadbandbreakfast.eventbrite.com.