Net Neutrality & the First Amendment

by Adam Thierer on August 9, 2010

There are few things I find more annoying in the Net neutrality wars than the silly assertion by groups like Free Press and other regulatory radicals that “Net neutrality is the Internet’s First Amendment.” It’s utter rubbish as I have documented here many times before. But now Sen. Al Franken is running around sputtering such nonsense, as he did in this recent CNN.com editorial, claiming that “Net neutrality is foremost free speech issue of our time.” The folks at CNN invited me to response and below you will find the piece PFF press director Mike Wendy and I submitted.

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Big Government the Real Threat to Internet

by Adam Thierer & Mike Wendy

In his recent CNN.com opinion piece, “Net neutrality is foremost free speech issue of our time,” Sen. Al Franken claims that “our free speech rights are under assault — not from the government but from corporations seeking to control the flow of information in America.”

He alludes to potential corporate blocking of online products and speech and says, “If that scares you as much as it scares me, then you need to care about net neutrality.”

Chicken Little, call your office!

Such sky-is-falling scare tactics are all too common in the heated debate over net neutrality regulation, but actual evidence of such nefarious corporate scheming is nowhere to be found. Perhaps that’s why Franken resorts to such tall tales.

Moreover, his reading of the First Amendment is at odds with the one most of us learned about in civics class (“Congress shall make no law…”). His would empower regulators by converting the First Amendment from a shield against government action into a sword that bureaucrats could wield against private industry.

We should be skeptical of any claims that net neutrality regulation is consistent with the First Amendment, let alone required by it. As First Amendment attorney Robert Corn-Revere has noted (“The First Amendment, the Internet & Net Neutrality: Be Careful What You Wish For“), “It should not be forgotten that the federal government’s initial impulse [in the mid-1990s] was to censor the internet and to subject it to a far lower level of First Amendment protection.”

The real “Big Brother” threat here is a government with the power to completely foreclose all speech under threat of fine or imprisonment — a power the private sector lacks even if you buy into the silly notion that it is out to bottle up speech or speakers.

And really, why would any company want “to control the flow of information in America,” as Franken suggests? First, it’s bad for business. There’s just no good business case for censorship. Internet service providers make more money by delivering more bits, not fewer. Second, censorship is hard. Internet service providers simply don’t have the technology or manpower necessary to effectively filter online content by viewpoint. Third, trying to control information would quickly create public relations nightmares for carriers. There’d be hell for them to pay with the press, industry watchdogs and especially their subscribers. The white-hot spotlight of public attention is the best disinfectant. Finally, any attempt to censor would backfire and actually draw attention to the speech or speaker in question.

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.

Net neutrality regulation is also tantamount to a declaration of surrender on broadband competition and a call to return to the era of public utility-style regulation. We shouldn’t give up so easily on the idea of facilities-based competition that only got started 14 years ago with the Telecommunications Act of 1996.

If broadband providers ever possessed “gatekeeper” or “bottleneck” power that required regulation, that rationale for regulation no longer exists. The internet has clearly changed the communications landscape, mooting old regulatory ideas once used to justify heavy-handed government regulation of mass media speech and its underlying infrastructure.

Today, 95 percent of America has access to robust broadband, and the vast majority can choose from multiple broadband providers (e.g., wire, wireless and satellite technologies). The investment and innovation that’s made this possible would never have happened in Franken’s world of heavily regulated infrastructure.

Just as certain is the slippery slope of regulation: Neutrality mandates will eventually spread to other layers of the internet to cover content and applications. (The FCC is already hinting at its interest in regulating in the cloud and other internet services and content). Google and Apple’s necks may be next on the neutrality chopping block.

Corporations go out of business if they no longer serve consumers. The government and its agencies do not. For the former, the combination of technological innovation, consumer education, industry best practices and competitive markets all work to blunt the abuses — real or imagined — of broadband providers. But only the Constitution and the Bill of Rights restrain the government.

If Al Franken has his way, these roles would be reversed and our government would be empowered to control the most important medium of human expression the world has ever known. We should think twice before going down that path.

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