Net Neutrality and Our Freedom to Think and Speak
A few years ago, Yale Law School Professor Jack Balkin explained that “a system of free speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression.” He wisely observed that policies that facilitate open innovation “better serve the interests of speech in the long run.” [i] To innovate, to speak, to learn, to trust – these are outcomes squarely within the power of the Federal Communications Commission to advance.
So one would naturally have expected that the FCC would have carefully examined the implications for diversity of speech, especially political speech, when recently abolishing all of the conduct rules that maintain an Open Internet. Rules as basic as the admonition that broadband providers cannot block a website or app because of the political views publishers or people express there. Or slow those websites or apps down. Or make them pay extra to reach subscribers while websites or apps with different views rush to their destinations.
But no. The FCC waded hip-deep into (incorrect) economic analysis of the incentives and abilities of broadband providers to limit openness[ii] – where, by the way, it could have profitably learned from historic FCC[iii] and Department of Justice actions. [iv]
Search, however, for the word “speech” in the FCC’s 2017 “Restoring Internet Freedom” order and you’ll find a series of cited “speeches” by past and present FCC Commissioners themselves, scattered references to filings in which private parties espouse speech interests, a discussion (and rejection) of whether FCC action violates the First Amendment interests of broadband providers. But only a few sentences that breezily dismiss diversity-of-speech concerns as unfounded and, if impaired, fully capable of being remedied without FCC involvement.[v] Instead, the Order resorts to calling out edge companies for blocking neo-Nazi speech in the aftermath of Charlottesville.[vi]
This is hard to accept at face value. Oliver Wendell Holmes Jr. taught us the difference between freedom of speech, on the one hand, and crying “fire” in a crowded theater on the other. But the FCC order appears to turn that admonition upside down – finger-pointing at actions to stop hate speech as the “block[ing]” of “viewpoints” while conspicuously failing to protect the kind of politically-important discourse that lives at the very center of the First Amendment.
The FCC’s order is highly vulnerable to judicial reversal – and its failure to safeguard diversity of speech is just one more arrow in the quiver of errors available to its legal challengers. Moreover, that failure is most likely to threaten exactly the kinds of interests that the First Amendment is designed to protect. The new, the small, the marginalized, the independent. And it is a dramatic break from the past. For over a decade the Federal Communications Commission – under both Democratic and Republican chairmen – had made plain that it would take action to keep the internet open.
Now, rather than fulfilling is Congressionally-mandated role of protecting both economic and non-economic interests like diversity of speech, the FCC seems determined to turn itself into a kind of ancillary antitrust agency, shrugging off the full scope of its responsibilities and ignoring the most recent and trenchant antitrust learnings.
Let’s start at basics: Democracy rests on diversity of speech. That is not a new thought, but it is an important one, We know that discourse is the marketplace of ideas, as important to those who listen as to those who speak. In a commercial marketplace, consumers react to deception and fraud by proceeding with care; learning which sellers are reliable, which they can trust, and then rewarding that trust. So too here: democratic speech rests on the belief that the consumers of speech can reach and choose freely among its providers. Constrict access and you risk further undermining the confidence consumers place in the avenues of democracy.
And loss of confidence is real. Less than 20% of U.S. adults place a lot of trust in national news organizations. More surprisingly, even fewer place a lot of trust in the news they receive from their family, friends, and acquaintances. As Lee Rainie of the Pew Research Center recently explained, “facts are the atomic unit of truth” and “[t]rust is what binds people together to...achieve collective action.” The prime example of this is democracy itself.
The old saying is that the best antidote to bad speech is more speech. That’s still true, but today there should be a corollary. What people really want, Mr. Rainie says, is “improved curators.” And in my view that requires an open internet where people know that they, not their broadband network, are choosing the curators in which to trust. After all, we are in a time when almost no value is unchallenged. Ideas that we once thought were bi-partisan and non-ideological are now the stuff of street fights, Twitter tirades, and contentious cable TV arguments. Building trusted relationships could scarcely be more important to the elections and public debates that will be waged.
Perhaps there was a time when net neutrality was a separate thing from the operation of our political system – a question of communications law, tied up in technology, entangled in business models and cat videos uploaded to social media sites.
But not anymore. Today, all of this – independent media and journalism, diversity of ideas, net neutrality – is one thing and that thing is the search for truth. It’s what Louis Brandeis said when he explained that the founders of this nation “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”[vii]
Simply put, in today’s world there is no ability to “speak as you think” without the Internet. The broadband networks that bring content to and from individuals every day are indispensable. Journalists can’t reach readers, ideas can’t spread, and debate can’t happen, without the use of broadband networks. The world of ideas rides on top of fiber and copper and through the airwaves. Both the debate of ideas and the internet should remain open.
[i] Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 Pepperdine LawReview, 101, 106 (2009)
[ii] See e.g. paragraphs 88-108, 123-139
[iii] In The Matter of Charter Communications, https://www.fcc.gov/document/commission-approves-charter-twc-and-bright-...
[v] Restoring Internet Freedom Order at paragraph 265, https://www.fcc.gov/document/fcc-releases-restoring-internet-freedom-order
[vi] Restoring Internet Freedom Order at n.983.
[vii] Whitney v. California, 274 U.S. 357, 375 (1927)(Brandeis, J., concurring)