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Friday, October 19, 2007

I’m Posting This One

posted by on October 19 at 8:50 AM

Traipsing around the Internet, I often end up at the on-line version of a quarterly magazine called City Journal.

City Journal focuses on municipal planning and city issues and bills itself as a high-brow journal that’s all about “restoring the quality of life to America’s cities.”

I thought I’d found a crew of urban agenda compatriots, but it turns out it’s a hotly partisan free market, Libertarian magazine. It’s a publication of the Manhattan Institute, the conservative think tank that powered Rudy Giuliani in the 1990s.

Politics aside, if you ask me, it’s not a particularly high-brow or scholarly mag. It typically presents its arguments in a black and white, sweeping, judgmental tone without much evidence of research or reporting. Also, and I know this is goofing out on journalism stuff, the leads to most of the magazine’s articles take forever to get to the point.

City Journal writes about a lot of the stuff I’m interested in, and typically I disagree with their Liberatarian take on things. I’ve been tempted to link a few of their articles on Slog as contrarian pieces here. (For example, they had one on cap and trade and another on muni wi-fi.) However, like I said, it turns out, their articles are underwhelming, and so, I never bother.

I’m posting this one, though. It’s their rejoinder to the Left’s crusade for net neutrality.

It’s written in that blockheaded City Journal style, but this time it actually had me reconsidering my pro net neutrality POV.

Arguing that net providers are like newspapers and so have the right to run or not run whatever content they choose, here’s the crux of their argument:

The Times apparently needs to brush up on the First Amendment. It’s certainly true that any government action restricting online speech in this fashion would be unconstitutional. When government censors, it does so in a sweeping and coercive fashion, prohibiting the public, at least in theory, from seeing or hearing what it disapproves of and punishing those who evade the restrictions with fines, penalties, or even jail time. Not so for Verizon or any other private carrier, which have no power to censor sweepingly or coercively. A world of difference exists between a private company’s exercising editorial discretion to transmit—or not transmit—certain messages or types of content and government efforts to censor.

Harvard law professor Laurence Tribe made this point eloquently at a recent Progress & Freedom Foundation event. In his view, those who would impose net-neutrality regulations on First Amendment grounds fail to appreciate “the fundamental right of editorial discretion. For the government to tell that entity that it cannot exercise that right in a certain way, that it must allow the projection of what it doesn’t want to include, is a violation of its First Amendment rights.” The principle that Tribe articulated would apply equally to the New York Times’s editors if they decided, say, not to run an advertisement from the Ku Klux Klan. That’s why it’s particularly puzzling that the Times ended its editorial about the Verizon incident by arguing that “freedom of speech must be guaranteed, right now, in a digital world just as it has been protected in a world of paper and ink.” Does the editorialist believe, then, that government should regulate what ads the Times may run in its own pages?

This twisted theory of the First Amendment cannot support net-neutrality regulation. The First Amendment was intended to protect us from tyrannical, coercive government power, not the silly mistakes of private companies.

RSS icon Comments


It's one thing to subscribe to two or three or ten newspapers to get different points of view. But now I have to sign up for multiple ISPs to get the whole internet?

Posted by elenchos | October 19, 2007 8:54 AM

That's a cute argument and all, but it ignores some vital things. Number one, these companies aren't providing the entire infrastructure, nor are they offering something they themselves developed. It's entirely dependent on government developed infrastructure and technology, and therefore, like the airwaves, the Internet belongs to the people.

Posted by Gitai | October 19, 2007 8:58 AM

But but but...

Net Neutrality isn't so much about content as equality of DELIVERY of content. It's about not allowing ISPs to throttle the bandwidth on certain customers or publishers. ISPs are not analogous to newspapers, they're more like.. what.. roads? Maybe roads. Let's try that:

So imagine that our roads were owned by private companies and not by the public. What Net Neutrality fights against is not the right of the published newspaper that is being delivered on that road to choose its content, but the ability of the road owner to charge different prices for passage of different papers. To basically extort money from the publishers for access to shortcuts, or to not be detained and delayed from their deliveries based on their content.

ISPs are not content providers, they're pipelines--conduits. Net Neutrality seeks to make sure they can't selectively turn down the flow. It has nothing to do with the editorial control of the content producers.

Posted by Anthony Hecht | October 19, 2007 9:02 AM

So they're arguing that phone companies should have the right to exercise editorial oversight on the content of calls being made over their lines? Because that's what this amounts to.

Libertarians like to package their ideology as freedom for the individual, but it usually ends up being about freedom of corporations to operate without any kind of regulation, and that's clearly the case here. So in effect, less freedom for individuals to speak their minds in a public forum, more freedom for corporations that own phonelines (whose construction was in many cases financed with tax subsidies) to censor anybody who doesn't pay for "premium" service or anybody who says things they don't like.

Also: The idea of a city run on Libertarian principles has gotta be the best argument against the Ayn Rand bullshit these people are into that I've ever heard. Still waiting for those magic market forces to fund a library or a fire department.

Posted by flamingbanjo | October 19, 2007 9:07 AM

This editorial is evil.

Posted by Greg | October 19, 2007 9:17 AM

Did y'all read that Comcast is already being selective with its data delivery?

Posted by Levislade | October 19, 2007 9:29 AM
ISPs are not analogous to newspapers, they're more like.. what.. roads? Maybe roads.
The legal term you're searching for here is common carrier, right? Bookstores are not responsible for checking every page of every book or magazine for porn or state secrets because they are a common carrier. The author or the publisher can be held accountable for what they print, but not the bookstore that sells it.

The flip side of removing net neutrality is that the ISPs are no longer really common carriers, which means they will have greater responsibility to block content that is illegal or offensive. They will start by censoring unprofitable content but they won't be allowed to stop there.

Posted by elenchos | October 19, 2007 9:33 AM

As a Brit, I have a hard time with the contemporary American debate about net neutrality, the fairness doctrine and other expectations that the media should be impartial, accurate and devoid of attempts to manipulate audiences. In the UK, newspapers wear their political allegiances on their sleeves and you can be assured that the content will be in line with your expectations. This is not a new phenomenon either - in fact, the desire to mass produce and distribute political messages was a major incentive behind the invention of the printing press.

Oddly, it's the lack of free speech that encourages the British media to report accurately. If you published a "Swift Boat" article in the UK, you could be sued for libel and required to prove your arguments in court. If your arguments are found to be false, the fines are steep. See the "Cash for Questions" affair for an example of this in practice.

Posted by gavingourley | October 19, 2007 9:54 AM

Gavin: The debate here is pretty simple: Notice how you typed your comment into a comments field and it showed up pretty much right away? It wasn't held up while one of the many companies that own the wires it passed over looked it over to see if it passed muster and if it was properly paid for? Net Neutrality.

The argument that it is an issue of Editorial oversight is a red herring being floated by the corporations that stand to make enormous profits in a pay-to-play system. They have spent ungodly amounts of money lobbying Congress to rewrite the FCC regulations to allow for this and now that the public is starting to take notice they are trying to spin it as something other than the blatant power-grab that it is. These same companies neither created the internet nor have any legitimate role as its administrators.

They are not even content providers. Phone companies are not newspapers. Full stop.

Posted by flamingbanjo | October 19, 2007 10:18 AM

As I understand it, the Internet is not something you just dump something on, it's not a big truck, but a series of tubes, and those tubes can be filled.

Posted by ted stevens | October 19, 2007 10:24 AM
Politics aside, if you ask me, it’s not a particularly high-brow or scholarly mag. It typically presents its arguments in a black and white, sweeping, judgmental tone without much evidence of research or reporting.

So basically it's just like The Stranger.

Posted by wile_e_quixote | October 19, 2007 10:41 AM


Oh please. British libel laws squelch free speech. It requires the defense to prove their allegations. So, let's say that I'm in England passing out flyers saying that McDonald's harms the environment. McDonald's can sue me for libel, in which case I have to offer up reams of evidence proving that the company harms the environment. The problem is that I'm just an office lackey making $30k/year. Where am I going to get the money for lawyers, experts, etc.?

By the way, environmentalists have been sued by McDonald's under British libel laws. Not having the resources of a multibillion-dollar corporation, they lost.

Posted by keshmeshi | October 19, 2007 10:48 AM

@12 It was only a partial loss, and what victory McDonald's had was entirely Pyrrhic.

Posted by Gitai | October 19, 2007 10:51 AM


It was only a partial loss, and what victory McDonald's had was entirely Pyrrhic.

Yes, and I'm sure that the defendants in the case, who got fucked over by MickeyD's in the British courts for several years are just thrilled over that pyhrric victory. British libel laws are shit. They allow asshole Holocaust denialists such as David Irving to drag authors such as Deborah Lipstadt into court because they wrote a book on Holocaust denial which basically said that Irving was full of shit.

British libel laws also allow for the practice of "libel tourism" wherein assholes file suit in the UK against authors or publishers they don't like even if those authors don't live in the UK or their books weren't published in the UK. You can read about this charming little practice at:

British libel laws are as ugly and repulsive as the stupid British practice of putting CCTV cameras everywhere to watch the citizenry. Fuck Britain! Any country whose prime minister crawled as far up George W. Bush's ass as Tony Blair did has serious problems.

Posted by wile_e_quixote | October 19, 2007 11:18 AM

I'm not even sure much of the net neutrality argument is particularly about content specifically (or rather, subject matter, as "editorial" would imply), but who OWNS the content, and the manor in which it is delivered.

It's kinda like why riding the train from PDX to SEA fucking sucks, when it SHOULD be totally sweet. The people that own different sections of the tracks are taking money (it's illegal, btw) to prioritize shipping containers over passenger trains, 'cause that's where the money is. They don't really care who's riding the train, it's all about the big customers (television and movie content delivery, etc.).

Posted by Dougsf | October 19, 2007 3:11 PM

1 pretty much said everything that needs to but I have to point out that while I tried to read the article with an open mind, I stopped when I reached the Orwell referrence.
I swear it's like all the right wingers do is try to pin their tactics onto the other guys. This is a strange kind of libertarianism

Posted by arandomdude | October 20, 2007 12:00 AM

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