In the previous segment, we looked at how First Amendment principles manifest themselves in how the Internet should or shouldn’t be regulated. And I concluded that media – including ISPs – should be able to maximize the value of their services without rules from the government that serve to protect and promote certain speakers. But that doesn’t preclude government intervention to protect the public from harms that may be posed by any actor on the Internet.
Many of the threats and potential harms identified by proponents of net neutrality, for example, are rooted in interests and concerns that have little to do with affecting the protected marketplace of speech. One example is the possibility that cable operators and telephone companies will seek to protect their own affiliated video and telephone services by degrading or otherwise discriminating against competing Internet-based video and telephone services.
But the government has tools – including, specifically, antitrust laws – that are designed to prevent unfair conduct that threatens competition in a way that harms consumers. Such laws, to the extent that their purpose isn’t related to affecting speech, aren’t precluded by the First Amendment, whether applied to ISPs or content and application providers.
Laws aimed at protecting privacy or preventing deceptive marketing practices – by ISPs or other Internet entities – also could be narrowly crafted in ways that do not impermissibly target or seek to affect protected speech.
But net neutrality rules, as currently proposed by some advocates, go beyond these purposes and are intended to directly affect the speech that is available on the Internet.
What do I mean by this? An Internet experience often consists of a relationship between the consumer, an ISP and a company offering a service or application. That relationship might be you, Apple/AT&T and a company that built a useful iPhone app. It might be you, Comcast/FiOS and Google. If the application provider and the service provider could work together to give you a new service or improve an existing service through QoS (the traffic engineering effort known as “quality of service”), then you might be very happy with the results.
Net neutrality proponents typically tend to forget that we can’t know what new applications or services might develop in five or ten years. They want to write rules governing what we have now, while potentially preventing what may come. They argue against new services that might be attractive to some, while ensuring they will be available to no one.
And while these net neutrality proponents purport to be acting on behalf of consumers, they seem more interested in determining who gets to speak on the Internet and in dictating how they may or may not use the Internet to deliver their content to consumers than in the preferences and demands of consumers themselves.
As I wrote earlier, stripping cable operators of the ability to tailor their video programming services and packages to maximize value to consumers by turning them into common carriers would have thwarted consumers’ interests. Similarly, imposing common carrier obligations on ISPs would suppress the development of Internet applications and services that best serve consumers.
The First Amendment protects consumers’ interests by preventing the Government from imposing its will on the marketplace of speech. Notwithstanding the protestations of “public interest” groups and some government regulators, the First Amendment rights and interests of consumers, the media, and ISPs are, with respect to these matters, aligned.
[As this series on the First Amendment comes to an end, this is a good time to note that NCTA proudly joins The Media Institute and other organizations in commemorating National Freedom of Speech Week during October 18-24.]