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Democracy & Technology Blog Does the First Amendment mandate net neutrality?


From a “defender” of the First Amendment:

The First Amendment, of course, protects speech only from the government. But access to the Internet is provided by private corporations enabled by government, and protecting the same interests and values that the First Amendment protects, requires in this case that the government create strong policies against incursion by companies that are, at root, profit-seeking rather than civic-minded.

So argues a report from the American Civil Liberties Union entitled “Network Neutrality 101 – Why The Government Must Act To Preserve The Free And Open Internet.”
Basically, the argument seems to be that if the government subsidizes, licenses or regulates something, it can be treated just like the government, at least for First Amendment purposes. That’s wishful thinking.
The ACLU’s rationale for broadband regulation is like the justification upon which the notorious Fairness Doctrine once rested, i.e., that the First Amendment confers a right to be heard. In other words, you as a consumer have a right to see your views expressed in your local newspaper or see or hear them on your local TV or radio broadcasts.
The Supreme Court bought that argument in 1969 in a case involving broadcasters (Red Lion v. FCC), but has never extended it to other media. The Court concluded that the First Amendment standards which applied to newspapers were not appropriate for broadcasting because the airwaves are a scarce resource — and few at the time imagined that innovators and investors would discover and develop ingenious methods of using spectrum in vastly more efficient ways. Of course, today newspapers are scarce and the airwaves support a dazzling array of new uses and carry more communications than ever before. But I guess the mindset of the ACLU is still parked in the 60s. Red Lion was a bad decision, and it’s a good example why we shouldn’t trust policymakers to predict the future of technology.
The fact is, all Americans are protected by the First Amendment, including the investors who funded the broadband networks we enjoy today. The First Amendment may play a pivotal role in the net neutrality debate, but possibly not in the way the ACLU hopes.
Professor Laurence H. Tribe was asked at a conference in 2007 whether he thought broadband providers have any editorial freedom or whether they can be forced to act as “common carriers” and accept all customers on equal terms? He predicted that the Supreme Court would probably follow the example it set in 1995 when it ruled that a Boston parade was not merely a conduit for the speech of participants. The Court made it clear that the parade’s organizers could pick and choose the parade’s participants.

Hance Haney

Director and Senior Fellow of the Technology & Democracy Project
Hance Haney served as Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute, in Washington, D.C. Haney spent ten years as an aide to former Senator Bob Packwood (OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee during the deliberations leading to the Telecommunications Act of 1996. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a B.A. in history from Willamette University and a J.D. from Lewis and Clark Law School in Portland, Oregon.