One of the most enduring elements of the debate over Net neutrality is the rhetorical fluidity that enables the opposing sides to start with a very general and entirely non-controversial goal, and then argue with breathless urgency that either the enforcement or absence of regulations threatens to stifle innovation, sap investment in the Internet economy, squelch competition, and on down the line.
So this week the debate lurched into First Amendment territory, with high-profile members of the pro and con camps sparring over the impact Net neutrality rules would have on freedom of speech.
It began with a speech the head of the cable industry lobby delivered at the Media Institute think tank, where he argued that nearly all Net neutrality proposals would entail government oversight of ISPs and, by extension, the Internet.
For much of his address, Kyle McSlarrow, the president of CEO of the National Cable and Telecommunications Association (NCTA), made an ipso facto type of argument, framing government regulation in any form as principally opposed to the spirit of the First Amendment.
"By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government," McSlarrow said.
The latest salvo from the cable industry comes as the Federal Communications Commission is in the midst of a rule-making process that could produce Net neutrality regulations enacted some time next year.
The timing of McSlarrow's First Amendment argument was no coincidence. On Tuesday, the FCC has a workshop scheduled that aims to "examine the relationship between the Internet's openness and democratic speech and participation."
Of particular concern to McSlarrow is the vague allowance in the FCC's notice of public rule-making (NPRM) for managed services, or applications delivered with a guaranteed rate and reliability of delivery.
"While the FCCs NPRM acknowledges the need to carve out 'managed' or 'specialized' services from the scope of any new rules, it also expresses concerns that 'the growth of managed or specialized services might supplant or otherwise negatively affect the open Internet.' Meaning what? Well, the strong implication is some kind of guaranteed amount of bandwidth capacity for services the government deems important," he said.
And that, McSlarrow warned, invites the prospect of forced speech, hinting at the dark conspiracy theory that envisions the Internet becoming a mouthpiece for government-approved content.
But while managed services have a place in the rules, the FCC could also bar the practice of content and application providers brokering deals with ISPs to ensure that, say, certain video content is guaranteed a zippy enough transmission to ensure a basic quality of viewing.
"And so the effect of such a rule would be simply to prevent the offering of services consumers might want that require such enhancements," McSlarrow said. "Does the First Amendment really allow the government to prohibit a content or applications provider from paying to acquire the means to distribute its content in the form or manner it wishes? Such a rule would ultimately decrease the overall amount of speech on the Internet, thus harming, not helping, First Amendment interests."
A silly, offensive argument?
That didn't sit well with Free Press, a Washington media-reform group that has been one of the most vocal advocates of rigid Net neutrality rules."
"Just repeating his argument shows how silly -- and offensive -- it is," Marvin Ammori, a law professor at the University of Nebraska who organized Free Press' Net neutrality arguments before the FCC in last year's Comcast case shot back today in a blog post. "McSlarrow specifically said that cable companies would "speak" by offering priority-treatment to some Web sites that pay cable companies more, at the expense of other sites that don't pay them. Really."
Ammori also rebutted McSlarrow's "forced speech" argument by pointing to case law that has upheld the government's right to mandate communications providers to deliver content or businesses to release certain information, such as nutrition facts or financial disclosures.
"Let me tell you about this Supreme Court case law. It applies generally to humans, not cable corporations," Ammori said.
He went on to offer a history lesson on free speech precedent, dating back to the violent mistreatment of Jehovah's Witnesses during World War Two.
Ammori acidly described a contrast between the free speech arguments of individuals and the rhetoric of McSlarrow and the cable companies his organization represents:
"They don't want to express their deep personal or religious convictions. They want to block and control speech. They want to determine winners and losers on the Internet. They want to break the Internet. They want to break your Internet, not theirs. And, to do so, they're raising a First Amendment argument based on protections for forced-speech and freedom of conscience."
So, when McSlarrow said the following, you might count Ammori as a skeptic:
"I dont know how to say it any more clearly than this: Internet service providers do not threaten free speech. Their business is to enable speech and they are part of an ecosystem that represents perhaps the greatest engine for promotion of democracy and free expression in history."
And so the debate goes on.