Sunday, August 26, 2007 - The Progress & Freedom Foundation Blog

Tribe: Net Neutrality Violates First Amendment

Adam gives the long-version of Professor Tribe's Aspen Summit talk. I'll give the headline version: Professor Tribe opined that net neutrality regulation would violate the First Amendment rights' of broadband providers.

This would, of course, be as ho-hum argument if made by someone of the pro-market, property rights-loving right. But the fact that the champion of liberal-left constitutionalism -- such as it is -- would hazard such an opinion is noteworthy.

It also underscores what an untethered world communications regulation inhabits. Regulatory proposals like net neutrality get lobbed about, while blithely ignoring constitutional norms. Indeed, the larger points of Professor Tribe's Aspen Summit talk made clear that cases like Red Lion, Pacifica, and Turner Broadcasting (I and II!) are untenable in today's fecund marketplace.

Tribe's First Amendment record in the communications arena has contained one big surprise. In 1999, with Professor Tribe arguing for the petitioner US West, the 10th Circuit struck down the FCC's customer propriety network information rules (CPNI), in the face of broad belief that the FCC could regulate this form of customer information.

A cynic would note that Professor Tribe sees First Amendment violations as epidemic as Professor Epstein's views on the Takings Clause. To be sure, there are similarities in the two scholars views here (and you can be assured that Professor Epstein would argue that net neutrality regulation would constitute a Taking under the Fifth Amendment). That said, the strong First and Fifth Amendment views of the respective scholars are premised on a notion of property -- and what is proper to an owner or speaker under the constitution.

If we get full-blown net neutrality regulation, I look forward to Professor Tribe's representation of the broadband providers against those manifold interests who would control speech.

posted by Ray Gifford @ 4:31 PM | Broadband , Communications , Free Speech , Net Neutrality