Net Neutrality: War of the Words

By Larry Downes on November 30, 2009 at 8:02 am

The debate over net neutrality is rapidly devolving into a war of the words--increasingly, words that take the form of hyperbole. Case in point: as reported last week by the Washington Post’s Cecilia Kang, White House Deputy Technology Officer Andrew McLaughlin told attendees at a recent conference that the Obama administration is committed not only to neutrality but to global free speech, and that indeed, neutrality “underlies free speech on the Web.” The two are “intrinsically linked,” according to McLaughlin, because without neutrality, there is the possibility of censorship.

“If it bothers you that the China government does it, it should bother you when your cable company does it,” McLaughlin was quoted as saying.

The First Amendment, in other words, ought to apply to Internet access providers, and the White House sees Net Neutrality as the mechanism for ensuring that it does.

There’s just one problem with this description of the administration’s plans: it has utterly no basis in the U.S. Constitution.

For more, see http://larrydownes.com/memo-to-andrew-mclaughlin-read-the-constitution/

Comments

This Article Sucks December 14, 2009 at 11:29 am

This article is ridiculous sophistry, and the author apparently lacks the self-awareness necessary to appreciate its irony.
Of course the First Amendment only restrains the government, but the same PRINCIPLE should apply to the Internet even if the First Amendment is not the source of LEGAL authority. Making such a big deal out of this language is... If it's not utter sophistry then it's just plain stupid. You only say they later "defended" the comments, but provide no details as to the nature of that defense. Were they arguing the legal point, or the policy one? Where's your reference, or even a quote?! Even if they WERE trying to make a legal argument, you've given us ZERO information on it before subjecting us to several pages of rant. And yet YOU'RE complaining about the debate? W.T.F.?!
The principle of common carriage for essential services is sound. It's been around for a LONG time, and has been applied in several different contexts, including telecommunications. Have you not noticed the consolidation of the print media, cable TV, VoD, podcasts, etc... all using the Internet as the fundamental transmission medium? You want to give (at most) TWO companies in each locale UNLIMITED freedom to control the content transmitted across their wires? When the First Amendment was adopted, only state action could effectively exercise such control over the public discourse.
Then, in the same breath, you suggest antitrust as a substitute remedy while calling it overused and misunderstood. Again, WTF? Perhaps you can explain how the antitrust laws prevent content-based censorship? They don't, of course. Even WRT the commercial media marketplace you totally fail to consider the policy implications or relying on such an expensive and (particularly after Twombly) difficult remedy.
Non-discrimination regulation does not violate the ISPs free speech rights. SCOTUS rejected this argument in the Turner cases. And, speaking of SCOTUS opinions, here's one you might want to consider before labeling the idea that the First Amendment might be implicated has "utterly no basis in the U.S. Constitution".
"Common carriers, ... are performing a public service. They are ENDOWED BY THE STATE WITH SOME OF ITS SOVEREIGN POWERS, such as the right of EMINENT DOMAIN, and so endowed by reason of the public service they render. As a consequence of this, all individuals have equal rights both in respect to service and charges. Of course, such equality of right does not prevent differences in the modes and kinds of service and different charges based thereon. ... [T]hat principle of equality does forbid any difference in charge which is not based upon difference in service, and even when based upon difference of service, must have some reasonable relation to the amount of difference, and cannot be so great as to produce an unjust discrimination." Western Union v. Call Publishing, 181 U.S. 92 (1901).

Add new comment