Concurring Opinions, via Instapundit, writes in favor of Net Neutrality — a key issue, and one that affects the ability of everyone in the world to get his thoughts on the Internet, as well as for everyone else to read them. But, of course, someone has to pay for everything. Some of the ones paying are inclined not to provide quite so much free-riding on the system as is available to you and me right now. As Frank Pasquale notes, considering Lawrence Tribe’s recent pronouncements on the subject:

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

Now, I get the point: Tribe says, if the First Amendment says that, say, a parade organizer has the right to decide who marches in his parade, why doesn’t a broadband owner have a right to govern which electrons march in his? The analogy is pretty lame; if a parade is indeed protected speech, a copper wire certainly isn’t. (In other words it has no message of its own; it is only a medium.) But that sentence was troubling. I wrote in the comments:

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?

I count one. Now, I love Net Neutrality. And I am not an expert on the competing constitutional interests at stake — which, let’s face it, are already far-fetched analogies to anything the framers of the Constitution could ever have contemplated regarding free speech. But we’ll have to do a lot better preserving it than positing either a right to privacy, itself only the product of those famous emanations, or “cultural self-determination,” as worthy of offsetting what may or may not be legitimate First Amendment rights.

(First posted on Likelihood of Success.)

Originally posted 2013-06-24 08:26:40. Republished by Blog Post Promoter

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.

One thought on “Find that right”
  1. I’m not sure I agree with your take on this matter. Although to be fair, I also work for Hands Off the Internet, so that certainly informs my opinion.

    But let’s assume even that I do concede there is a chance ISPs will block content, I still argue that explicit net neutrality regulations are unnecessary. Antitrust laws already exist to penalize ISPs if they engage in anti-competitive behavior, which includes blocking certain sites.

    But I do say this with every confidence that a) ISPs would be stupid to block bits, and b) they don’t want to anyway. After all, the very few isolated cases of blocking before were settled without these kinds of laws!

    But I do also think Tribe has a point. The Dorgan-Snowe bill for example would certainly limit ISPs ability to monetize their pipes. And that is a restriction on their property. Only if they abuse it should something be done. So far, there isn’t the need.

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