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The Supreme Court may kill net neutrality and the right to free speech

We may be headed towards the next Citizens United, if Cablevision and the rest of the telecom companies have their way:

Citizens United, of course, in President Obama’s words, “opened the floodgates” for corporate money to overwhelm the political system. Almost 70% of Americans believe it hands even more power to lobbyists. Opponents of Citizens United (and previous cases leading to it) are considering and introducing remedying legislation.

But, you respond, the Internet remains. Citizens United’s infusion of corporate money will largely go to campaign TV ads and films. The Internet enables speech—through blogs and low-budget, individual videos that can go viral. It enables associations—as individuals find each other and form groups around issues and candidates. It can help aggregate small donors.

The Internet might not act as a perfect counterbalance, you say, but it’s a start.

That’s true. Unless this Supreme Court interprets the First Amendment to eliminate the openness we’ve always expected of the Internet. That is, the Internet was historically open and free to all users because of traditional telecommunications laws (Lemley and Lessig explain). The Bush II administration deregulated access to the Internet—lifting laws applying to AT&T (the largest donor to federal campaigns of any company) and Comcast. Deregulation for Internet access then worked about as well as deregulation of the finance industry—it’s been an utter disaster, placing our nation far behind other nations in terms of the speeds, availability, and cost of Internet access.

Deregulation also has threatened the openness of the Internet. Carriers like AT&T and Comcast have expressed a desire to “manage” other people’s Internet sites and technologies however they want and to extort fees from providers of applications and content. This would undermine the traditional openness of the Internet. AT&T could decide to limit the videos available on YouTube or on a “conservative Youtube”—or could simply require everyone seeking to provide TV programming through the Internet to get permission from AT&T to be on the Internet. AT&T could impose a surcharge on every iTunes download—or every political donation—and charge campaigns and corporations for every political ad. As AT&T’s former CEO claims, the Internet is “their pipes” and AT&T doesn’t want anyone using those pipes without paying AT&T tribute.

How could the courts screw this up too? If the consumer advocates, scholars, and lawmakers can actually succeed in defeating the lobbying might of AT&T, Verizon, and Comcast, then the courts could overturn the result. You might think that the public’s free speech rights are implicated in their ability to use the Internet to communicate with whomever they want, however they want, through the Internet. But to these courts, the First Amendment belongs to powerful corporations.

Cable lobbyists have argued that cable and phone companies have a First Amendment right to block speech on the Internet. Really. They argue that a case called Turner Broadcasting, a landmark decision from 1997, imposes heightened constitutional scrutiny on any rule impinging on the carriers’ “editorial discretion” to block websites in offering access to the Internet. So even though bloggers, video-makers, and online news outlets might make editorial decisions, the cable or phone company is the ultimate constitutional “editor” of the Internet with inviolable free speech rights.

Can you imagine? A world in which your Internet Service Provider, or the ISP for whoever hosts a website, gets to decide whether you can post something or not? It’s a world in which free speech would get transferred almost completely from individuals to corporations, with corporations allowed to control what you say online.

In that world, it would seem any speech running through someone else’s "pipes" could be up for corporate censorship. If your telephone company doesn’t like what you’re saying on their phone lines, who’s to say they can’t cut your call? If your cell phone company doesn’t like the text messages you’re sending, why can’t they censor those, too? Unless you’re standing on your own property, yelling what you want into thin air, it seems you wouldn’t have a right to say what you want.

Of course, this is just a logical extreme of the situation set up by the Citizens United ruling by the Supreme Court. I hope it won’t get that far. But corporations are challenging speech by individuals in court to get that ruling, and given the makeup of the Supreme Court, I’m not too hopeful they’ll exercise judicial restraint.

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Jason Rosenbaum

Jason Rosenbaum

Writer, musician, activist. Currently consulting for Bill Halter for U.S. Senate and a fellow at the New Organizing Institute.