Sunday, December 14, 2008 - The Progress & Freedom Foundation Blog

Martin Abandons Unconstitutional Filtering Proposal; What About Obama's Universal Broadband?

censored-pornChairman Mao--er... Martin--has canceled (WSJ) the FCC's December 18 meeting, when the Commission was set to vote on Martin's proposal to rig an auction to give away a valuable piece of spectrum ("AWS-3") to M2Z networks. In exchange for a sweetheart deal on the spectrum, the company would have been required to use a quarter of it to provide a free (but very slow) wireless broadband service. Martin had initially proposed to require that the service be made porn-free, but eventually suggested that users over 18 would be able to opt-out of network-level filtering.

Two weeks ago, when it became clear that Martin would attempt to ram this proposal through while he still could, I asked how the ascendant Left would respond:

Will the defenders of free expression triumph over those who see ensuring free broadband as a social justice issue? Or will those on the Left who usually joining us in opposing censorship simply remain silent as the government extends the architecture of censoring the "public airways" onto the Net (where the underlying rationale of traditional broadcast regulation-that parents are powerless-does not apply)?

I'm glad to see that the deathblow to this unconstitutional proposal did indeed come from the political Left--specifically, from Sen. John Rockefeller, (D-W.Va.) and Rep. Henry Waxman, (D-Calif.), who will be responsible for overseeing the FCC in the new Congress. (The Bush administration had already opposed the proposal, as with so many of Martin's abuses, had failed to stop it.)

With President-elect Obama having declared that, "Here in the country that invented the Internet, every child should have the chance to get online," it seems almost certain that the Administration will press ahead with some kind of universal broadband proposal of its own. But what would such a proposal look like? If it's another public broadband utility, would it include network-level filtration like Martin's proposal? If so, will the Democratic opponents of government censorship stick by their principles and fight that, too?

I suspect we may find that what's constitutional is politically impossible (unfiltered free Internet) and what's politically possible (filtered free Internet) is unconstitutional.

As a constitutional matter, the courts have rejected network-level filtering mandates because user-installed filtering tools are a "'less restrictive" alternative. In comments filed on this proposal in July, a broad coalition of free speech groups (including my PFF colleague Adam Thierer) explained why Martin's proposal violated the First Amendment--and why even allowing users to opt-out of the required filtering would not make the proposal constitutional:

First, ... [the] filtering mandate is so sweeping in its scope that it would violate the rights of older minors to receive content to which they have a constitutional right to access (but which arguably might be "harmful" to a five-year old). Second, the stigma of having to sign up for a central, nationwide list of - effectively - "people who want access to adult content" would be a chilling and unconstitutional burden on adults' right to access lawful content. Under the First Amendment, the government cannot force people to "sign up" in order to receive lawful speech... This is especially true because of the broad sweep of content blocked by [the proposal] and the availability of highly effective and less restrictive alternatives in the form of client-side filtering tools.

Third and finally, wholly apart from the constitutional rights of those accessing the Internet through the AWS-3 network, the proposed filtering mandate would also violate the constitutional rights of speakers and content providers on the Internet who want to speak to the broadest audience possible. It would be flatly unconstitutional for the government to select and anoint one, or even a limited number of, filtering "blacklists" of content that must be blocked - even if a private party (the AWS-3 licensee) does the selection under an FCC mandate. Unless the filtering "blacklist" only contained sites that had been adjudicated to be illegal for minors (on a nationwide basis, presumably), the filtering mandate would be precisely the sort of unconstitutional prior restraint squarely rejected by the Supreme Court in Bantam Books, Inc. v. Sullivan.

But as a political matter, it may turn out that this kind of free broadband proposal just won't fly without network-level filtering requirements (and an opt-out)--however unconstitutional that might be. While the courts and any reasonable person might recognize that client-side filtering (installed by users) offers parents highly effective controls over what their children can access, the truly Puritanical element in America probably won't care--at least on the level of political rhetoric. One can easily imagine the opposition from "social conservatives" to the idea of using the public airwaves to make "smut" available to minors. Coming from the Obama Administration, such a proposal could easily be lampooned as a "Porn Bailout." Republicans--who so often seem to prefer fighting the "culture wars" over trying to promote something as arcane as, say, constitutionally limited government--might try to cast any public broadband utility without network-level filtering as a "liberal" plot to corrupt America's children (think Jocelyn Elders' endorsement of masturbation as Surgeon General). After all, why should I have to pay for your porn--let alone your kid's porn?

Even if Obama and Congressional Democrats have the votes to override such opposition, would they have the political nerve (or think it worth the political capital) to ram through a free broadband scheme that relies on parents to do their own filtering--and that could thus be attacked (however unfairly) as making porn available to kids? Or would they conclude (probably correctly) that existing broadband subsidies could be significantly expanded without facing such a strong political push to impose filtering mandates as a condition of public support--and choose this "safer" course? The problem, of course, is that unless broadband is completely free, some people still wouldn't pay for it and even if it were free, others still wouldn't use it.

censored-porn-2Or perhaps Kevin Martin could continue his crusade to free the world from content he (and the traditionalist Republican base he's been cultivating) finds objectionable by insisting that subsidies should only go to broadband providers that offer censored Internet packages (essentially opt-in for filtering). This is, of course, essentially what he has done throughout his time as Chairman in his relentless "war on cable"--looking for every opportunity to coerce cable providers into "voluntary" agreements to provide cable programming on an a la carte basis. What better way for Martin to revive his political career? Though Martin's native North Carolina is trending Democratic, its socially "conservative" voters might hail well Martin's ostentatious commitment to "protecting the children."

posted by Berin Szoka @ 4:18 PM | Broadband , Free Speech , Internet