Net Neutrality Does Not Protect Free Speech
June 10th, 2008 by Peter SudermanThe net neutrality debate has been rife with scare-mongering from the start, but the latest suggestion from the ACLU — that net neutrality is a necessary component of free speech — continues to annoy me:
Speakers at an American Civil Liberties Union conference today praised legislation that would ban discrimination of Internet content by broadband companies, saying that firms like AT&T, Comcast and Verizon Communications — not the government — pose the greatest threat to free speech and expression online.
The problem with this idea is that free speech, as a legal principle, doesn’t extend to private property. The fact that you can’t, for example, walk into a Best Buy and start shouting obscenities or post huge signs for Circuit City, isn’t a violation of free speech. It’s a property owner placing reasonable restrictions on how property, generally open to the public but not owned by it, can be used. Similarly, unless an ISP specifically guarantees a user the right to do and say whatever he or she wants while online, there’s no inherent right to do so. Free speech is not an absolute right to do or say anything anywhere you please; it means there can be no legal action against you for the content of your speech. So disruptive, unwanted, or restricted behavior on private property doesn’t get the same protection. If an ISP wants to block obscenity or the websites of competitors or certain types of ads, it seems to me that, in the same way that retail establishments are allowed to control what’s said within or posted on their walls, internet providers ought to be allowed to do so.
Now, that doesn’t mean that a lot of heavy-handed blocking and restriction is a good idea. Indeed, I suspect it doesn’t make much business sense. Believe me: If my ISP started doing so in a way that was problematic for my regular usage, I’d jump ship to a slower but unblocked ISP as quickly as I could find the time — just as I stop frequenting grocery stores when they stop carrying my favorite products or raise their prices. None of this, however, is a reason for Congress to get involved — all of these issues can and should be worked out between consumers and providers without government intervention.
June 10th, 2008 at 10:37 am
How about a restaurant that refuses to serve people of color? What are “reasonable restrictions”?
Um, no. That’s absolutely wrong. Of course legal action can be taken against you for the content of your speech, even online. I work on cases like that (especially online libel) all the time. Why are you lying about this?
Wow. Another deliberately dishonest analogy. It wouldn’t be the “retail establishment” controlling what’s said within its premises. The proper analogy would be a retail establishment’s landlord restricting the store’s speech. And there is already a load of case-law supporting the free speech of renters in such situations.
LMAO. So if AT&T suddenly decided to ban all FreedomWorks-related content, you’d just find “another ISP” and all would be fine? All you readers and advertisers would just swallow the fact that now millions of people wouldn’t ever see FreedomWorks? All your donors will keep their pockets open even though you wouldn’t be able to put up your gaspriceprotests and your angryrenters so you can pretend you actually do something for all that money? It would just be like “going to another store” for you?
Jesus, Peter, where’d your intellectual rigor go? This is like kicking puppies.
June 10th, 2008 at 10:51 am
Glad you’re so amused, sir.
Yes, you’re right that there are some restrictions on speech: libel, obscenity, etc. I considered including a caveat when I wrote this, but didn’t consider it necessary. In hindsight, I probably should’ve noted that, yes, there are some exceptions.
As far as restaurants discrimination based on race, that’s not a speech issue. Race, unlike speech or behavior, isn’t a choice. You can’t choose to switch races, but you can choose to refrain from certain statements.
And I’ll stand by the Best Buy analogy. Anyone can walk into a retail establishment, but if you walk in a start a shouting match or pull out a sign with an advertisement for a competitor, you can be asked to leave. That’s not a violation of free speech.
I’m not aware of the case law regarding tenant rights, but no matter how the law stands, the property owner ought to be able to bar the tenant from posting signs, etc. so long as it’s clearly spelled out in the contract.
As far as our situation goes, I can’t speak definitively to our legal or business strategy. But my guess is that if an ISP banned FreedomWorks, we’d fight it in court if the ISP had a contractual obligation not to restrict our material. (And any ISP that guarantees access to an individual or organization and then refuses to provide that access should be taken to court — but that’s a contract violation, not a free speech issue.)
However, if an ISP simply changed its terms of service and notified us that they’d no longer be guaranteeing access, I’m fairly confident we’d look for another provider (and tell our friends to avoid the one we’d been on). One thing we absolutely wouldn’t do in any case is advocate federal intervention in order to place restrictions on an ISP’s services or pricing.
June 10th, 2008 at 11:00 am
Why? It’s not accurate. Why would you stand by an analogy that logically doesn’t make any sense? It’s the landlord, Peter, not the store that’s “restricting speech.”
Thankfully, property ownership doesn’t trump the constitution.
June 10th, 2008 at 3:22 pm
Interesting. But you will, apparently, support government restrictions on what a lawyer will charge for his or her services:
http://www.freedomworks.org/newsroom/media_template.php?issue_id=3953
Why do you oppose one government restriction but support another? Or does FreedomWorks disavow itself of Russ Walker’s initiative?
June 16th, 2008 at 2:16 am
[...] Net Neutrality Does Not Protect Free Speech By Peter Suderman The net neutrality debate has been rife with scare-mongering from the start, but the latest suggestion from the ACLU — that net neutrality is a necessary component of free speech — continues to annoy me: … [...]
August 1st, 2008 at 10:33 pm
-It’s the landlord, Peter, not the store that’s “restricting speech.”
And how is this different? Should a landlord be forced to provide rooms for someone they do not like? Should I have to tolerate a new-Nazi or whatever kind of kook? Clearly not. One cannot force another to accommodate them or provide a service. Business transactions are not a given, they take place only between two voluntarily acting individuals. Neither the seller or the buyer can use force through the coercive means of government to make the other do what they want. At least it is unconstitutional and incompatible with a free society. Obviously our government is rampant with such special interest rule.