Paul Clapham wrote:Although to be honest, you have a constitution which doesn't permit your government to restrict free speech but it says nothing about whether corporations can restrict free speech. So the situation isn't equally balanced.
Paul, that's a very complex and contentious area of law you've touched on. I certainly do not purport to be an expert on it. The basic notion, that the United States constitution prohibits the government from restricting speech, is the starting point. As you point out, that prohibition doesn't apply to private entities. So, for example, the owner of coderanch.com gets to decide who is allowed to post here, and who is not. That's a private transaction, with no constitutional rights involved.
But... the question becomes spectacularly more complicated when the government regulates something, particularly when the regulation operates to control a limited resource. For example, radio spectrum is a shared resource. In principle, anyone can transmit a radio signal. But, in order to avoid wasteful interference, the United States government allocates blocks of spectrum for certain uses and, for nearly all of those blocks, requires that operators of transmitters have a license before operations begin. Who gets those licenses? In particular, who gets them when there are more applicants for licenses than there are available spaces in the relevant spectral block? (For example, in a given geographic region, there is enough space in the FM commercial broadcast band for roughly 50 transmitters; the government must have some fair way to decide who gets those 50 licenses, when there are more than 50 applicants.)
This is more complicated than it sounds. In the early days of radio, there were enough slots for everyone. But, once those slots filled up, the slot-owners had total possession of a valuable commodity, one that others wanted. The applicants who didn't have licenses argued that the government was, in effect, licensing others to enjoy the right to speak (by radio), while denying that right to those who didn't have a license. This has lead to a lot of complicated policy arguments, and numerous experiments, in trying to enforce some kind of public-benefit/private-property balancing approach. There has never been universal agreement how best to maintain that balance (indeed, hard-core defenders of property rights don't even agree that such a "balance" exists).
This all got worse in the late '90s when cell-phone frequencies were allocated. Everyone knew, long in advance, that all those frequencies would be needed. To be "fair," the FCC allocated them by a blind lottery. Well, guess what? People with no interest at all in operating communications companies found ways to enter the lottery, with the result being that some of the "winners" ended up in a position to rent their frequencies to real communications companies.
Before cell phones showed up, the government was already regulating communications on, in effect, another axis. Consider the good old landline telephone. While there is (as there always is) some disagreement about this, the government decided that the unregulated market was not a good model for delivering telephone services. So, for a long time, the United States had virtually one, and only one, telephone company. It was a private company, but it was allowed to ignore most anti-monopoly laws in the United States, while being carefully regulated. Not a bad deal for that company, as it was able to get all of the telephone business we had, just under conditions set by the government. One of those conditions was that it had to act as a "common carrier." And that's where free speech comes in. A common carrier communications company, like a common carrier transportation company, is not allowed to deliver or withhold services based on what the customer wants the carrier to carry. That is, a bus line is not allowed to say, "This bus will only take white passengers." A bus line has to take anyone who can pay the fare. Likewise, the phone company has to connect your call to the number you dial, regardless of what it is that you are going to say. On top of that, the phone company must give you access to its system at the same price it charges everyone else, and it has to set its rates at a level that nearly everyone can afford. To an extent, telephone carriers already have "net neutrality," although one can certainly buy different levels of service.
So, what's that mean for free speech and the internet? It means that the internet's traffic is already traveling on communications lines that are regulated in ways designed to recognize the distinct nature of a national, shared communications network. We all pay our ISPs based on whatever deal we can get in the marketplace, but all those ISPs ultimately rely on a small number of big operators to provide access to, and to maintain and operate, the internet's backbone. Those big operators would probably be able to make more money if they had the option of prioritizing traffic from customers willing to pay a premium. But, that means those of us who can't pay those premiums would have our traffic set to a lower priority. A lot of people say that's just the free market, working as it should. Others say that the internet is so central to our political dialog, that the government must regulate it in such a way that we all continue to have equal priority. "Net neutrality" refers to the government enforcing the latter policy position.
Now (and here my biases in favor of neutrality will show, I admit), to some, this means the government will be in the business of telling corporate backbone operators what they can do and what they can't, in a way that unconstitutionally intrudes on their customers' freedom of speech. Suppose I show up and say, "I'd like to move a lot of data at a high speed, and I am willing to pay to do it." My ISP and their backbone operator might be happy to sell me bandwidth at a price I can afford. But, under net neutrality, the government may order my ISP and their backbone operator to
deny me the high-speed access I have freely offered to buy. That means, to some, that my government is going to tell me that, even though I am ready to express myself entirely at my own expense, I am not allowed to do so as I wish, because of some overarching sense that doing so is not fair to someone else who hasn't got the same money to spend on bandwidth as I do. As though the other guy's poverty is my fault, and I'm supposed to willingly curtail my freedom of speech just because not everyone can pay a fair price for the bandwidth I want. My own view is that this overlooks the fact that bandwidth is limited, and that, if I get more bandwidth, someone else has to get less, but that kind of thinking gets me called a socialist and, as an American politician, that's something I need to avoid just now.
Having said that, though, I'm still not able to determine what kind of speech is being restricted, even taking into account that spending money counts as speech.
I am among those who think spending money is not speech, but maybe the above (admittedly not one of my best essays on legal issues, but I'm making this up in one draft
) explains a bit about how Fox News and its audience can claim that "net neutrality" conflicts with free speech, without all of them starting to giggle in uncontrollable embarrassment. In short, their view is that, if I want to buy space to speak, and my ISP would sell me that space, but for the government telling them not to, then that is the government curtailing my free-speech rights. The problem with that view, I believe, is that there are only so many soap-boxes that will fit in the public square, and selling them to the highest bidders means that only the rich get a soap-box to stand on.
HTH
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