As a staunch supporter of limited government and free speech, I have regularly objected to government attempts to own and control the nation’s communications networks. Historically and in many current societies throughout the world, governments have repressed the free exchange of ideas and information, often to serve the interests of domineering political leaders in undemocratic nations. Only by preserving the private sector’s preeminent role in offering communications services and diligently defending the First Amendment to the U.S. Constitution can we ensure that such circumstances won’t develop in America. I have carried this mission forward — even when doing so hasn’t been easy or universally saluted — pursuant to my oath to defend the Constitution in each aspect of my current role.
For these reasons and others, I have been a staunch critic of government projects to build and operate broadband networks. Beyond flirting with a perverse form of socialism, municipalities’ overbuilding of private providers creates market inefficiencies, distorts competitive outcomes, encourages regulatory favoritism towards state-owned networks, and can be a waste of taxpayer money. Even in instances where municipal, or muni, broadband reaches unserved areas, it substantially deters private entities from entering a market. Moreover, as I recently discussed in a speech at the Media Institute’s annual gala in honor of free speech, certain muni broadband providers have been known to precondition access to their networks on acceptance of vague speech codes, creating an ominous threat to the First Amendment.
The relevant two paragraphs — within an eleven-minute speech — must have struck a nerve, as muni broadband supporters abruptly responded to my remarks with hysterical outrage. Most comments involved vicious ad hominem attacks, and included language such as “lying,” “stupidest,” and “sell-out,” all undeserving of any response. And, while I would have welcomed a substantive debate on this topic, even those more detailed critiques largely sidestepped the civil liberties issue I raised and, instead, resorted to misleading and irrelevant arguments. Accordingly, it only seems appropriate to set the record straight on several falsehoods spread by individuals in response to my speech and expand upon the serious First Amendment threat posed by muni broadband speech codes.
Government Speech Restrictions Are Inherently Distinct from Their Private-Sector Counterparts
In my speech, I focused on the terms of service of several prominent muni broadband providers that precondition access to their networks on adherence to content-based restrictions on speech. For example, research by Professor Enrique Armijo found that Chattanooga, Tennessee’s muni broadband provider prohibits users from posting messages “that are excessive and/or intended to annoy or harass others” on third-party forums and blogs and has forbidden use of the network to transmit, distribute, or store “threatening, abusive or hateful content” or material that offends “the privacy, publicity, or other personal rights of others.” Similarly, research by Theodore Bolema and Michael Horney of the Free State Foundation found that Concord Light, the muni broadband provider in Concord, Massachusetts, threatens to block content “that Concord Light deems to be unlawful, harmful, or offensive, or otherwise, in its reasonable discretion.” It also prohibits transmission of content that is “defamatory, harassing, abusive, fraudulent, tortious, unlawful, threatening, intimidating, or invasive of an individual’s personal privacy” and use of the network in a manner that “degrades, threatens, or victimizes an individual, group or class of individuals or an entity.”
Critics responded by pointing out that private ISPs condition network use on practically identical terms of service, and that I was biased in singling out municipal providers. What nonsense. Pointing out that “everyone else is doing it too” is no justification for abridging the First Amendment, especially when a cursory look at the terms of service of private ISPs shows that provisions differ by provider and some are far less discretionary and restrictive than the examples I cited. More importantly, while it may be true that certain private ISPs condition network use on acceptance of speech agreements, this fact is totally irrelevant from a constitutional perspective. Even to this non-lawyer, First Amendment 101 teaches that the provision only applies to state actors, such as the federal government, as well as state and local governments through the Due Process Clause of the 14th Amendment. In other words, an act of censorship may be permissible if performed by a private actor but prohibited if executed by the state.
On top of their confusion with respect to how the Constitution works, my critics also tacitly admit that ISP content-based speech codes are acceptable in certain circumstances. However, these are by and large the same critics who have advocated for the reinstatement of burdensome public utility regulation for broadband providers and argued that, in the absence of Title II, muni broadband is necessary to ensure that all Internet content is treated equally and agnostically. But there is nothing neutral about a user policy that threatens content-based censorship, and my critics completely undermine their position by justifying muni broadband censorship based on private providers’ terms. Perhaps their true view is that censorship is justifiable for certain types of content or viewpoints, but such a policy is inconsistent with principles of content neutrality, and they can’t have it both ways.
Muni Broadband Does Not “Promote” First Amendment Values
In what I can only describe as an attempt to enflame and confuse the debate, my critics further argued that rather than restricting online discourse, muni broadband providers promote First Amendment values and the free flow of information. This is at best naïve and at worst an Orwellian sleight of hand.
In the wake of the Restoring Internet Freedom Order, certain groups, including the ACLU, rushed to promote muni broadband as an alternative to Title II, arguing (mistakenly) that, as long as private ISPs were not subject to public utility regulation, online expression will be subject to private censorship and that governments ought to own and operate networks to ensure that the Internet remains free and open. This claim could not be more absurd.
Beyond the fact that the threat to free speech online posed by private ISPs — as opposed to other technological platforms — has not been truly shown to be more than hypothetical, the government is arguably the worst-positioned entity to protect free expression on the Internet. As has been borne out over the past several decades, the business case to engage in viewpoint or ideological discrimination does not exist for private ISPs, apart from meeting users’ expectations. Further, there is a fundamental difference between the type of censorship at issue in the case of government versus private providers. To the extent that private ISPs have an incentive to engage in content restriction, such activity would be driven not out of an ideological or viewpoint-discriminatory motive, but for anti-competitive or commercial purposes. And, consumers are protected from anti-competitive ISP content restriction by antitrust law and the Federal Trade Commission.
In contrast, muni broadband providers have a tremendous incentive to engage in viewpoint or ideological discrimination — the most suspect and proscribed type of censorship, under Supreme Court precedent. Governments worldwide are notorious for content-based online restrictions to achieve despicable goals. According to a study by the OpenNet Initiative of 40 countries around the world, the majority had engaged in filtering or blocking of Internet content. And, with speech codes that leave so much room for bureaucratic discretion, there is little reassurance that muni broadband speech codes wouldn’t be used discriminatorily to target content by the municipal government’s political foes.
Moreover, while competition cuts against censorship for private ISPs, such economic constraints do not apply in the case of the government. The government lacks any economic incentive to operate efficiently or provide a better Internet experience; instead, it has an incentive to cross-subsidize its own broadband prices and crowd out private providers. Rather than encouraging competition, the government’s entrance into the broadband market does the very opposite: it disincentivizes private investment and new entrants and, in turn, undermines the economic forces that restrict ISP censorship.
Muni Broadband Providers Have Required Users to Accept Unlawfully Vague and Discretionary Speech Codes, and Banned Constitutionally-Protected Speech
Bizarrely, my critics further responded that I had failed to provide historical “evidence” of First Amendment mischief by muni networks. Perhaps they were confused about how a constitutional violation works. A state action or law can violate the First Amendment as applied or on its face. In the case of the latter, the law or act is always unconstitutional, and in the case of the former, it is only unconstitutional to the extent of a particular application. My argument was not based on as-applied historical instances of censorship, but on facial grounds. That is, certain terms in the muni broadband codes I cited facially violate the First Amendment.
For example, it is obviously facially problematic to ban speech that is “excessive and/or intended to annoy or harass others.” What does that even mean? Are Chattanooga’s network users prohibited from trolling on Twitter? Allowing the government wide discretion to define what is “excessive and/or intended to annoy” leaves tremendous room for discretion and bias. And, since these terms are so vague, it would be practically impossible to be certain in advance what speech would be unlawful, leading to an unacceptable chilling effect on users. Indeed, it is for that latter reason that the Supreme Court has treated vague limits on speech as particularly suspect.
Worse, Concord Light threatens to block content that fits into certain proscribed categories “or otherwise, in its reasonable discretion.” That’s not even a vague standard; it’s no standard at all! Such an enormously discretionary provision gives absolutely no notice of what speech is proscribed, and, moreover, allows those enforcing the speech code to do so in an arbitrary and discriminatory manner.
Granted, not all speech prohibited under the terms of service I cited is protected under the First Amendment — for example, defamation is an unprotected category of speech. However, Concord and Chattanooga’s terms additionally ban large swaths of constitutionally-protected speech. For instance, Concord bans speech that “degrades, threatens, or victimizes an individual, group or class of individuals or an entity,” while Chattanooga has proscribed transmission of “hateful” content. In other words, both providers ban hate speech, which the Supreme Court has repeatedly held to be protected under the First Amendment. One principle undergirding our First Amendment jurisprudence is that outside of a few narrow exceptions, the government may not suppress speech based on content, and viewpoint-based discrimination is presumptively invalid. Paraphrasing Justice Kennedy, we don’t entrust to the government the power of determining which ideas are suitable for public discourse, and instead rely on “free and open discussion in a democratic society” to root out toxic ideas. In the muni broadband case, as in others, the answer to hateful speech isn’t to ban it, but to promote and engage in counter-speech.
Despite the apparent facial inconsistency of the content-restrictive terms of service with the First Amendment, one area for debate might be whether muni broadband networks constitute public fora, and therefore entitle users to full free speech rights. After all, not all speech fora created by the government provide full-stop access and preclude the state operator from censoring content. In AETC v. Forbes, the Supreme Court found that a state-owned broadcast television station was not a public forum and that the station’s decision to exclude a candidate from a political debate did not violate the Constitution. Since a broadcast TV station must necessarily make editorial choices, the Supreme Court did not want to second-guess acts of journalistic discretion and found that unrestricted rights of access for speakers were unworkable in that context. However, I would argue that this analysis simply doesn’t apply in the muni broadband context, where editorial choices are not necessarily required, and the municipality is offering the Internet under the guise of expanding digital access and communication.
According to precedent, a fundamental consideration in determining whether a government speech forum grants fulsome access rights is whether the essential nature of the forum is to enable the exchange of ideas. In our current era, a muni broadband network billed as offering the full Internet would seem to represent such a speech forum, and therefore creates a situation where content-based censorship of protected categories of speech would mandate strict scrutiny. This view is further reinforced by the Supreme Court’s view of online spaces. In Packingham v. North Carolina, the Supreme Court stated that while in the past, streets and parks represented quintessential government-created public fora, “cyberspace […] and social media in particular” have become the most important places for “the exchange of views” in this day and age. A project allowing the government vast power to police online content should therefore justify extreme apprehension.
* * *
I spoke at the Media Institute in defense of the First Amendment. The past few weeks have been punctuated with attacks on my speech, each failing to grapple with the major constitutional problems raised by muni broadband speech codes. Censorship by government poses a true threat to a free and open Internet, but my critics somehow want us to believe that restrictions on speech are less dangerous when the government owns and operates the network. Nothing could be further from the truth, and, in taking such a position, some of my critics seem to reveal their disingenuousness in claiming to support free speech online.
I could retreat in the face of my critics’ attacks and misinformation, or I could continue to defend the First Amendment. I choose the latter, and better, course of action.