In defense of the FCC's Open Internet Order, which unilaterally mandates net neutrality, four former FCC Commissioners and Professor Susan Crawford argue to an Appeals Court that Verizon and broadband providers should enjoy no broadband freedom of speech under the Constitution.
Why are many of the biggest political supporters of net neutrality focusing their legal defense of net neutrality on the constitutional freedom of speech argument and not the main event of the case, the Comcast vs. FCC precedent, i.e. does the FCC have direct statutory authority to regulate the broadband Internet?
The reason probably has a lot more to do with politics than the Constitution. That's because the net neutrality movement has long analogized and politically marketed net neutrality to be like an individual's freedom of speech under the U.S. Constitution -- in a desperate attempt to make an arcane regulatory pricing issue relevant to the public and to mask that it is a solution of preemptively restricting freedom without evidence of a real freedom problem.
The net neutrality movement has long misrepresented the American Constitutional notion of freedom of speech in the First Amendment of the Bill of Rights in two major ways.
First, they fantastically branded net neutrality as the "first amendment of the Internet" ensuring freedom of speech, when the Internet has never had a constitution let alone any amendments.
Never mind that the term net neutrality was made up out of whole cloth by free culture activists three decades after the Internet was invented and several years after it was commercialized. Never mind that neither "net neutrality nor "openness" can be found anywhere in the U.S. Constitution or U.S. law.
A big reason why Verizon challenged the FCC's Open Internet Order is that after Congress considered and rejected mandating net neutrality, the FCC in a highly-controversial 3-2 decision unilaterally deemed "openness" to be the FCC's new purpose and "net neutrality" to be its new regulatory organizing principle. Three FCC commissioners went ahead and ruled despite having no direct statutory authority to do so and despite Congressional Internet policy in Section 230 opposing them: "it is the policy the United States to preserve the competitive free market… Internet… unfettered by Federal or State regulation."
Second, these four former FCC commissioners and Professor Crawford are misrepresenting Americans' Constitutionally-protected freedom of speech. They claim Verizon and broadband providers can have no freedom from the Government limiting their speech when the First Amendment protects all citizens and groups from the Government abridging free speech.
Interestingly, the courts have previously ruled that Verizon indeed can enjoy constitutionally protected free speech in Bell Atlantic vs. U.S. which found it was an unconstitutional abridgement of Bell Atlantic's (now Verizon) free speech to be banned from having a cable "voice" when Bell Atlantic was banned in 1984 from buying a cable company.
What is most troubling about the constitutional position of these four FCC commissioners and Professor Crawford is that they effectively want the FCC to be exempt from the Constitution and to be able to be the arbiter of who has freedom of speech to communicate in certain ways and who does not. This sweeping assertion of power effectively would transmogrify Americans freedom from government limits on their free speech, to a grotesque notion that an unelected FCC could decide who is eligible to enjoy free speech and who is not.
The irony here is that those who claim to be against Internet censorship call for unnecessary preemptive censorship of broadband providers in the name of no Internet censorship.
Sadly this lays bare that "free culture" net neutrality proponents are not principled free speech adherents because they proactively seek to silence those who disagree with them.
* * * * *
Defending First Principles Series
Part 1: Debasing Free Speech as No-Cost Speech
Part 2: The Copyright Education of Mr. Khanna
Part 3: A Conservative-Libertarian Rift on Copyright Reform?
Part 4: Why Conservatives Should be Skeptical of Copyright Reform
Part 5: Copyright Reform or Neutering? Depends If Baby's Thrown Out with Bathwater?
