Cable Industry: Proposed Net Neutrality Rules Threaten First Amendment

WASHINGTON, December 9, 2009 – A cable industry leader made the case Wednesday that proposed government rules to regulate internet access in support of so-called Net neutrality or open internet principles are not only unnecessary but would threaten First Amendment rights.

“Net neutrality rules have the potential to restrict protected speech in myriad ways – and not just the speech of internet service providers,” said Kyle McSlarrow, speaking at a luncheon at the Four Seasons sponsored by the Media Institute.

“In some ways, from the millions of consumers who interact and engage on the Internet, to the facilities that provide those services, to the applications and content providers on the Web, the Internet is all speech. So as the FCC considers regulating in this area, it’s important that the agency carefully examine whether net neutrality rules can be justified under First Amendment standards,” McSlarrow said.

“But urging the government to impose rules that supposedly promote First Amendment values is too often used to justify regulations that instead threaten First Amendment rights,” he said. “By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government.”

McSlarrow’s association represents cable operators that serve more than 90 percent of the nation’s cable television households and more than 200 cable program networks. According to NCTA, the cable industry is the nation’s largest broadband provider of high-speed Internet access.

McSlarrow said net neutrality rules “could infringe First Amendment rights because they could prevent providers from delivering their traditional multichannel video programming services or new services that are separate and distinct from their Internet access service.”

The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

He said almost every net neutrality proposal would seek to control how an ISP affects the delivery of Internet content or applications as it reaches its customers. This raises forced speech issues and is not necessary as ISPs have said they will not block customers from accessing lawful content or applications on the Internet, said the cable official.

“Imposing regulations that prevent providers from using “too much” capacity for speech-related services not even associated with Internet access should cause all sorts of First Amendment and Fifth Amendment Takings alarm bells to go off,” said McSlarrow.

The FCC’s net neutrality rules as proposed “would prohibit ISPs and applications providers from contracting for any enhanced or prioritized delivery of that application or content to the ISPs’ customers,” he continued. The FCC rules could prevent some content providers from offering material in the form they want, which raises the question of whether the First Amendment allows “the government to prohibit a content or applications provider from paying to acquire the means to distribute its content in the form or manner it wishes?” asks McSlarrow.

“To tell a new entrant or an existing content provider that it cannot enter into arrangements with an ISP for unique prioritization or quality of service enhancements that might enable it to enter the marketplace and have its voice heard along with those of established competitors interferes with that provider’s speech rights in a way that should immediately invite First Amendment scrutiny,” said McSlarrow.

Progress & Freedom Foundation Senior Fellow Barbara Esbin also addressed the First Amendment issue in a paper released Wednesday on the Net neutrality debate. “Under traditional First Amendment jurisprudence, the government compelling a speaker to speak or transmit a message that it does not wish to transmit is just as much a free speech infringement as it is to prevent a speaker from transmitting or posting messages it wishes to transmit or post,” she wrote (PDF).

“If I believed that in the future our broadband ISPs will arbitrarily degrade service, that our antitrust and other consumer protection laws will be inadequate to protect consumers, and that our core First Amendment freedoms will be threatened by the lack of network neutrality rules, I might join the “pro” side of the network neutrality debate. But I don’t,” wrote Esbin.

Esbin’s and McSlarrow’s perspective runs counter to many who argue that Net neutrality regulation is key to preserving free speech principles.

“Internet providers like AT&T and Verizon want to permanently eliminate Network Neutrality, the Internet’s First Amendment and the key to Internet freedom,” according to MoveOn.org Civic Action.

The Federal Communications Commission plans to hold a workshop next week on free speech, democratic engagement and the concept of an open internet.

The meeting is one of a number of public workshops the FCC said it plans to hold in December and January as part of the open Internet Notice of Proposed Rulemaking. “These workshops will explore issues raised in the proceeding, including the technical realities of broadband networks and the impact of the Internet’s openness on various interests, including speech, democratic engagement, consumers, innovation, and investment,” reads the FCC notice (DOC).

In the FCC’s NPRM it also addresses the First Amendment issue. “We also seek comment on whether our proposed nondiscrimination rule will promote free speech, civic participation, and democratic engagement. Would discrimination by access providers interfere with those goals?

“Conversely, would our proposed rule impose any burdens on access providers’ speech that would be cognizable for purposes of the First Amendment, and if so, how? Would any burden on access providers’ speech be outweighed by the speech-enabling benefits of an open Internet that provides a non-discriminatory platform for the robust interchange of ideas?” reads the document (PDF).