Net Neutrality, the Fake First Amendment – the Mob unto Free Speech

by Mike Wendy on August 23, 2010

Make no mistake about it.  Al Franken’s Net Neutrality is a fake First Amendment, not the real one.  The real one bars our government from coercing private speech.  His is about controlling it, the complete opposite of that Right.

Let me explain. 

Al Franken laments that the biggest First Amendment issue of our time is Net Neutrality.  During his public proselytizing, the Senator sites a 1945 case (Associated Press v. United States) for the proposition that the First Amendment does not abide private actors’ efforts to baldly abridge others’ speech / publication activities.  But like so much on the Left, the case is not what it seems. 

AP v. U.S. is an antitrust case involving AP’s anti-competitive restraint of trade against non-members of its newsgathering association.  Among other things, AP claimed that the First Amendment allowed it to come up with restrictive member agreements that interfered with its competition because, well, they were the Press.  And Freedom of the Press is enshrined in the Constitution.  It’s a “get out of jail free” card of sorts, they claimed.

The Court said (I paraphrase): “Not so fast, buddies.  Your agreement restrains trade.  It violates the Sherman Act.  And, don’t even think you can use the First Amendment as a shield to excuse your malfeasance.  The First Amendment wasn’t meant to allow you carte blanche.  It doesn’t allow you to act in blatantly uncompetitive ways toward other publishers / competitors.”

The use of this case is telling.  Though the First Amendment proposition within AP v. U.S. rings true, what it is not saying is this:  The government may use the First Amendment to control speech, something seemingly espoused by Senator Franken.

There’s good reason for that. 

The First Amendment severely limits government’s intervention into our speech.  Generally, government actors cannot employ it to demand that private actors change, restrict or stop their free expression of speech; it is a power against government, not a sword to demand more from private actors by the government.    

All of this is immediately relevant for the Comcast / NBC merger now before the FCC.  Though the Senator from Minnesota opposes the merger, Franken strongly implies that a necessary concession for the merger’s approval, should it in all likelihood be approved, is the imposition of Net Neutrality regulation on the new company.  By extension, he suggests that Net Neutrality regulation this is the only reasonable outcome for the entirety of the Net. 

But tellingly, as his choice of the AP case alludes to, the Government cannot, through the First Amendment itself, achieve this outcome.  It has to go a different, darker, more circuitous route.   And that route is the rightfully maligned “consent decree.”

When successful companies seek to merge, they often ask the permission of Uncle Sam.  This usually results in a “consent decree” – an agreement to do “stuff” that is in the “public interest” to promote competition, but which many times has little relation to the initial competitive concerns posed by the merger itself.   Consequently, these “consent decrees” present unique opportunities for U.S. politicians, policymakers and “public interest” groups to, well, extort concessions from supplicating companies that desire merger approval.  (If this feeding frenzy were practiced in the private sector, it’d be closer to criminal RICO violations than anything else.)  Thus, what can’t be achieved legitimately through other legal means can be in this particularly oblique, corruptible and plastic process.   

So, there’s a lesson in this. 

Al Franken’s First Amendment isn’t as altruistic or the “right thing to do” as it purports to be.  Rather, it’s about grabbing companies by the short hair and wresting out of them concessions – sort of like agreeing “willingly” to something in the movie “Goodfellas.”

How do you like that “First Amendment”?  It certainly looks far different from the actual one, which says “Congress shall make no law…”         

The bottom line is this: The Franken crowd has the First Amendment on its head.  Parading as the real deal, it’s nothing more than strong-arm politics, which seek to jam speech regulation down America’s throat, aided and abetted by a pliant FCC that mocks the clear limits of the First Amendment, as well as the will of the American people.  

Put more plainly – it’s about control of you and me, nothing more.

PFF’s Adam Thierer says, “The Internet’s First Amendment is the First Amendment.” Net Neutrality regulation is the fake First Amendment, one which, if allowed to go through, represents not only a crushing blow to our civil liberties, but also a step back to a tyrannical past that the Constitution, the Bill of Rights and the Rule of Law sought to dispel.      

Forgettaboutit, Al.  I do not want my government acting like the Mob.  That is the opposite of liberty.

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