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First Amendment Rights of ISPs?

Argh. Ok, I wasn’t going to do it, but Mike seems insistent on passing this little piece of trash around the blogosphere.

Here’s a lawyer who thinks that the wire, not the people who create the contents that flow through it, have free speech rights.

Even if neutrality mandates made good sense, they should not be imposed if they impinge on constitutional rights. The First Amendment’s language is plain: “Congress shall make no law … abridging the freedom of speech.” ISPs like Comcast and Verizon possess free speech rights just like newspapers, magazines, movie and CD producers or the man preaching on a soapbox. They are all speakers for First Amendment purposes, regardless of the medium used. And under traditional First Amendment jurisprudence, it is just as much a free speech infringement to compel a speaker to convey messages that the speaker does not wish to convey as it is to prevent a speaker from conveying messages it wishes to convey. Thus, neutrality laws mandating, for example, that an ISP not block access to any lawful Web site would mean that it could not choose to restrict access to material that in its view, say, is “indecent” or “homophobic.”

Um… yeah. That’s exactly what we’re saying. An ISP doesn’t have rights to choose who gets to see what. That’s the basis the internet was founded on. You pay for access and you get to see everything that’s out there – good, bad, and ugly. Should an individual not want to see certain types of information, they can filter themselves, manually or technologically, as that is their right to do so. How does someone who apparently is so knowledgeable about freedom of speech overlook the fact that allowing the ISP to choose who gets to see what is the about the most blatent form of censorship there is?

I can see it now. New right-wing nutjob sponsored “clean” VoIP services that automatically bleep naughty words like “abortion” “condom” or “Darwin.” Cause, ya know, the copper and fiber have freedom of speech rights.

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  1. At least give the article a fair summary. To do so, you must read the full piece to see where it is leading. BTW, it was published in the National Law Journal, not by some radical nut-job organization. The most important part of the article is –

    In effect, what the net-neutrality proposals really seek to do, without saying so directly, is to reverse the Supreme Court’s 2005 decision in National Cable & Telecommunications Assoc. v. Brand X Internet Services by turning ISPs into common carriers required to carry all messages indifferently. In addition to the problematical First Amendment implications, to do so would implicate the Fifth Amendment takings clause, because it is questionable whether compelled access to the ISPs’ private property would be found to be a public use.

    Important constitutional interests are at stake in the raging net-neutrality debate. Greater appreciation for these constitutional values, especially freedom of speech, is likely to lead to sounder communications policy.

    In other words, if net neutrality regulations, as currently proposed, are established and found to be unconstitutional (which is very likely based on our laws), the end result would be that the ISP’s can exercise content censorship with the complete blessing of the law. Neither of us want that!

  2. I think I did give it a fair summary. We disagree on what the important part of the article is.

    But to adress this specific part, I think most people consider their ISPs common carriers and don’t want that to change so the ISP can make more money. That’s at the heart of the net neutrality debate.

    I also don’t see how one can argue than the wire has freedom of speech rights. People have freedom of speech rights. That’s like saying that if you’re pulled over for speeding, the car should get the ticket. It’s not logical.

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