And based on that, I can at least say that Tribe is onto something. Indeed, the pipes being laid today are inarguably the property of the ISPs that own them. Verizon (not part of our coalition) spent billions to get FiOS up and running. And they should be able to monetize it however they see fit.

This could include prioritization of packets, which would be especially useful in high def video, something the Internet can’t really do right now. See Adam Penenberg on this: http://www.slate.com/id/2128201/

But the people who are afraid ISPs would infringe on “free” speech are also creating a false impression. There is no real incentive to block bits, and there are antitrust laws to penalize those who do.

Great post! Shades of Lochner, indeed.

Net neutrality may or may not be good public policy, but it most assuredly IS a constitutional option. At the risk of getting much too doctrinal for a blog post, let me run through a quick sketch of an argument for the constitutionality of net neutrality regulation:

Let’s say that Tribe and the broadband providers are right that a government-mandated net neutrality policy would diminish the editorial discretion of cable companies and telcos over the content carried in their “pipes.” That is, under a net neutrality regime, cable companies and telcos could not restrict or promote access to content pursuant to their own discretion, but would instead be required to carry all Internet content without prejudice.

However, per Turner, net neutrality would trigger only intermediate First Amendment scrutiny — not strict scrutiny — because it would be a content-neutral regulation. That is, the purpose of net neutrality regulation would be to foster “widespread dissemination of information from a multiplicity of sources” — not to suppress or prefer any particular speech. Thus, net neutrality would not trigger the highest form of scrutiny, but rather the intermediate scrutiny discussed in United States v. O’Brien.

Intermediate scrutiny requires that the government regulation at issue (1) promote an important governmental interest unrelated to the suppression of speech and (2) not burden speech any more than is essential.

Net neutrality can easily pass intermediate scrutiny because (1) it promotes the important governmental interest in ensuring “uninhibited, robust, and wide-open” competition in the Internet content and applications markets and (2) its only burden on speech — potentially diminishing the editorial discretion of broadband providers — is precisely the means essential to securing the interest invoked.

In sum, under current precedent, net neutrality would be entirely consistent with the First Amendment, even if we grant that it does “force” some speech on broadband providers.

I don’t entirely understand your point – do you disagree with Tribe’s analysis as a matter of existing First Amendment doctrine or do you disagree with him as a matter of policy, regardless of the doctrine (i.e. that Congress (or other governmental entities) should be able to regulate “the Internet” in such a way as to maintain net neutrality)?

It is an argument which, if we are lucky, will end up with both sides losing- muddled court cases in different circuits tying up the telcos and making Google’s positions unenforceable, and the FCC keeping their hands off, given that they have, indeed, messed up most everything- and promoting NN at this point would be as big an error as any of their other errors.

The net effect is pretty negligible in this world where universal commodity wireless will gradually inhere, making the ultimate war a B2B battle between big boys (Verizon and Bankamerica, Yahoo and AT&T, select your pair) with the rest of us not affected at all. Unless the government gets involved (wrong) (again).

Competition does exist in some places, but not everywhere. Moreover, consider this argument from Gigi Sohn:

“Since the vast majority of consumers subscribe to only one broadband access provider, there is only one way to deliver traffic to that consumer. Broadband providers can exploit this monopoly to favor or degrade the delivery of traffic from particular sources according to whether they have paid fees to the provider.”

“This terminating monopoly is exacerbated by the high switching costs that inevitably result if one wants to change broadband providers. There is a good discussion of terminating monopolies in this paper by four professors from MIT and Carnegie Mellon. So maybe NN proponents need to hone our message a bit – when you want government to act, monopoly sounds much more urgent than duopoly or discrimination.”

from

http://www.freepress.net/news/21103

More from Sohn:

“there are numerous obstacles to becoming a broadband network provider – hence the dynamic duopoly that we now have.”

from

http://www.publicknowledge.org/articles/62?page=15

It sounds, though, like Tribe is the one being consistent here. We “Net people” like Net neutrality because it profoundly subsidizes our ability to publish — why else would it be the case that there are virtually no barriers to entry into the marketplace of expression (I did not say ideas!) in our time? Nothing is free, after all. On the other hand, many of us are protective of the Constitution. So this sentence is troubling:

Many First Amendment absolutists would like to see it eviscerate the public’s rights to privacy and cultural self-determination.

Notwithstanding the characterization (“eviscerate”), this sentence names three competing “rights”: Free speech, privacy and cultural self-determination. For 20 points, how many of those rights are in the Constitution?

Note that the Supreme Court worries about the taxation of newspapers (Grosjean, 1936), but not the paper and ink they’re written on.

I think Tribe is saying this: in Hurley, the Supreme Court said organizers of an Irish parade could keep gay marchers out because they felt that including them would be inconsistent with their message. Now imagine if Verizon got angry at the Washington Post’s article today on Japan’s telecom policy (I blogged that today), and decided to just slow down (or cut off) access to its subscribers. I think Tribe would say that just as the Irish parade organizers could keep gays out of their parade, Verizon could keep the Washington Post off its network.

In my view, FAIR v. Rumsfeld may well serve as a strong enough limitation of Hurley as to make Tribe’s analogy untenable.

Any documents on the web that give a beginner’s explanation that you could point me to would be greatly appreciated. This is not an area of practice for me, I just find it interesting and would like to be better informed. Thanks.