Al Franken’s Got the First Amendment Backward for the Internet

by Mike Wendy on July 29, 2010

Senator Al Franken recently spoke before a lefty convention in Nevada, decrying the First Amendment harm visited upon the peoples’ Internet by corporate monoliths (read primarily as network providers).  In his view, corporate censorship or its vast potential, promoted by state quiescence, represents the greatest First Amendment battle of the century.

Yes, it’s certainly shaping-up to be a First Amendment challenge for the ages.  But frankly, Al, it’s one that we shouldn’t be having in the first place.

“Progressives” like Franken, as well his buddies at the Free Press, have adeptly used language to change the terms of the debate.  By claiming the Internet is the peoples’, it allows them to subvert the speech and property interests of network providers to that of the plastic public interest.  Consequently, any actions or laws that seemingly thwart access to the peoples’ Internet are per se violations of the peoples’ fundamental rights which require rectifying, either immediately or through regulatory prophylaxis. 

Franken and the Free Press believe the FCC is complicit in this injustice.  The agency’s past inaction to forbid network providers from “discriminating” against civic discourse / voice represents an affront to the First Amendment Rights of individuals and their commons.  To right this wrong, they strenuously advocate Net Neutrality laws that force only one slice of the connected web – its network providers – to keep the peoples’ Internet open, no matter what. 

The problem with this scenario – aside from the fact that de facto Net Neutrality exists, and the market thrives in the very absence of regulation – is that so-called progressives have the First Amendment exactly on its head. 

Though it’s become popular to bend the Right into a positive one for the government, the plain fact of the matter is the First Amendment remains a formidable, and wise, limitation on what the government can do to private parties’ speech activities. Civic discourse is indeed important, but when Congress steps in and restricts what private players can or can’t do when they traffic in it on the web, that demands a pretty high hurdle that Congress (or its agencies) just can’t avoid will-nilly. 

Bogus “Crisis-tunities” do not rise to that level, as much as the Free Press and Franken may want it to (that is, while they hold the majority in the House, Senate and White House).  Still, it looks the FCC’s going to give it a shot anyway.

They should be careful what they wish for. 

Franken’s reasoning basically takes speech and private property rights out of the hands of its owners, and, if followed through logically, would enable the FCC to impose all sorts of regulations on providers under the guise (one not dissimilar to the ubiquity and scarcity reasoning of broadcast speech regulation) that the “public Interest” demands a regulatory takings of a sort to protect the peoples’ Internet.

This might be tolerable to some if the proposed Net Neutrality laws were equally borne by all who touched the Net.  But they aren’t.  Only network providers get punished here (almost sounds like a Bill of Attainder).  The “shall nots” and diminution of their fundamental speech and property rights run only their way.  Not to content providers.  Not to applications makers.  Not to (non-network) service providers.

Sadly, the urge within the community to punish competitors via a pliant regulator will likely be visited upon those very same entities wishing for regulatory arbitrage (as noted here by PFF colleague, Berin Szoka).  Maybe not now, but at some later date.  Just look to the New York Times’ call to open up Google’s secret code a la “search neutrality.” Or, IBM’s new mainframe woes at the EC.  In short order, competitors, faux-public interest groups and the FCC will find some “outrageous behavior” that needs correcting to Lilliput most any successful company into submission.

Most all of the IT we employ touches the peoples’ Internet.  So, use your imagination (the Free Press and its engorged staff of lawyers and lobbyists certainly is) – EPA-like, parts-per-billion regulatory possibilities are enormous.  The Commerce Clause, addled by the regulatory raison d’être of regulators, virtually assures that this will occur.

It does not need to.

The Internet is a special and unique organism erected by the independent actions of billions of individuals.  It demands both respect and nurturing.  That is, all parts do, including the “evil” network providers’.  Efforts to turn to the First Amendment on its head and subvert it to the specious and suspect public interest will succeed in only one thing – a battle waged for a Pyrrhic victory.        

The Internet works.  We should resist regulatory (and constitutional) Thanatos.

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