Two Concepts of Liberty
In December of 2010, the FCC passed a network neutrality order mandating, among other things, that ISPs allow content to be passed through their networks. Proponents of network neutrality have called it the "First Amendment for the 21st Century." Opponents have responded by arguing that it is the FCC's network neutrality order that violates the First Amendment. How can this be?
This ongoing debate has many legal and policy elements, but it seems to come down to an old philosophical divide involving differing conceptions of liberty. In his famous lecture, analytic philosopher Isaiah Berlin described the two concepts of liberty as negative and positive. To simplify, negative liberty is freedom from external inteference. Positive liberty, on the other hand, is freedom to do something, which includes having the power and resources necessary to do that something.
For example, negative liberty means that no one may rightfully take my property away from me without my consent. On the other hand, an example of positive liberty would be that I have a right to health care which must be provided for me if I cannot afford it on my own.
Necessarily, positive rights, like the right to health care, involve at least some subjugation of the rights of others. It would violate the rights of those who must provide the health care without their consent, and also those who must provide the means to pay for such health care. Further, it would also infringe upon other positive rights insofar as there are scarce resources available to pay for all such rights. It is also important to note that Berlin described a dangerous rhetorical affinity between demands for positive liberty and justifications for totalitarianism, because it allows those in power to argue their schemes are just providing true liberty for the people.
Conversely, negative rights are compossible with one another, which means all people could hold them simultaneously. These rights apply only against aggressors, i.e. rapists, murderers, and thieves, and not against those who are respecting the rights of others. This is why most libertarians and classical liberals prefer the negative conception of liberty to the positive.
Proponents of net neutrality promote a positive conception of liberty. Opponents of net neutrality promote a negative conception. As a result, the two sides talk past each other. Proponents argue that end-users should have the ability to access anything on the internet by using the networks provided by ISPs. This is a freedom to surf the internet. Opponents argue that the ISPs have a right to manage their networks, just as one would have the right to manage one's own property according to the terms and conditions one chooses. This is a freedom from external interference with one's network management.
The First Amendment Case Against Network Neutrality
With few exceptions, our Constitutional rights embody the negative conception of liberty. This includes the right of free speech protected by the First Amendment. Unless there is state action involved, one would not be able to bring a successful First Amendment challenge against another person for stopping them from speaking. For instance, I have the right to kick you out of my home for something as menial as saying the word broccoli, and this would not violate your right to free speech under the Constitution's negative conception of liberty. My right to property trumps your right to speech, which is really your right to use your property (your voice, tongue, etc.) to say what you want insofar as it does not invade my property right.
Consistent with this negative conception of liberty, First Amendment jurisprudence does not allow the government to compel speech. In Miami Herald Pub'g Co. v. Tornillo, 418 U.S. 241 (1974), the Supreme Court unanimously held that a Florida law mandating that a newspaper carry responses from political candidates when the paper published editorials critical of them was unconstitutional. The Court stated that:
[a]ppellee's argument that the Florida statute does not amount to a restriction of appellant's right to speak because "the statute in question here has not prevented the Miami Herald from saying anything it wished" begs the core question. Compelling editors or publishers to publish that which "'reason' tells them should not be published" is what is at issue in this case. The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. Id. at 256.
In this case, FCC's network neutrality order would compel ISPs to post, send, and otherwise allow access to any content of a subscriber's choosing. This makes the order similar to the compelled access statute rejected in Tornillo. ISPs make editorial decisions, just like newspapers, when providing content on homepages and other specialty pages. They also provide network management, which involves editorial discretion when dealing with smut, malware, and other potentially unlawful or dangerous online content.
Ironically, one of the big fears driving proponents of network neutrality is that ISPs will use this editorial discretion to limit the viewing options of end-users. Yet they argue that ISPs are mere conduits of speech and not akin to newspaper editors. That ISPs do not generally restrict content is true. But what network neutrality proponents fail to grasp is that in a competitive market, ISPs cannot profitably restrict valuable content to end-users.
While the FCC and other proponents view network neutrality as the First Amendment of the 21st Century, it is not consistent with the First Amendment of the Constitution. This is because the Constitution's conception of liberty is primarily negative, consistent with the classical liberalism of the Founding Fathers. Internet enthusiasts need not fear this conception of liberty. In a free market, ISPs who wish to make money will always be subject to the desires of consumers.