Kavanaugh: ISPs have a First Amendment right to exercise editorial control

should the post office open and read every letter they transport around to exercise their first amendment right of "editorial discretion"?

this seems like a pretty fucking ridiculous stance to take.

this seems like a pretty fucking ridiculous stance to take.

Net neutrality violates the First Amendment, he said, because the regulation “infringes on the internet service providers’ editorial discretion.”

Some legal experts believe Kavanaugh’s First Amendment argument against net neutrality could be applied to data more broadly, and possibly pit him against current and potential data privacy regulations.

According to Christopher Sprigman, a law professor at New York University who authored an amicus brief submitted to the D.C. Circuit in favor of net neutrality, Kavanaugh's argument that ISPs have a First Amendment right to determine what data they transmit implies that the data itself is speech.

If that is the case, he said, then the providers could argue that selling user data to advertisers counts as “speech” also protected by the First Amendment. If that argument were accepted by the court, there would be an additional hurdle to enacting data privacy regulation.

https://www.cnbc.com/amp/2018/07/12/trump-scotus-kavanaugh-isps-first-amendment-rights.html

This is a fun argument.

thats a bit like saying the water company turning off your water is making an editorial decision.

ISPs are the pipes, not the water

Well, if you don´t pay the water bill, your water will get turned off.

...

Net neutrality violates the First Amendment, he said, because the regulation “infringes on the internet service providers’ editorial discretion.”

Some legal experts believe Kavanaugh’s First Amendment argument against net neutrality could be applied to data more broadly, and possibly pit him against current and potential data privacy regulations.

According to Christopher Sprigman, a law professor at New York University who authored an amicus brief submitted to the D.C. Circuit in favor of net neutrality, Kavanaugh's argument that ISPs have a First Amendment right to determine what data they transmit implies that the data itself is speech.

If that is the case, he said, then the providers could argue that selling user data to advertisers counts as “speech” also protected by the First Amendment. If that argument were accepted by the court, there would be an additional hurdle to enacting data privacy regulation.

https://www.cnbc.com/amp/2018/07/12/trump-scotus-kavanaugh-isps-first-amendment-rights.html

This is a fun argument.

@n64dd: I like this case as a thought exercise more than most people, I think. It plays on two important principles: The first is that one's freedom's can be impeded by parties other than the government, and the second is that "your liberty to swing your fist ends where my nose begins," which is a truism of law.

The principle cited by Kavanaugh here grants increased speech rights (assuming we grant him his widened definition of speech) to the owners of infrastructure specifically by allowing them to reduce similar liberties to users of that infrastructure.

The past several years I've grown very concerned about the granting of these types of liberties to those with the most powerful microphones and hammers at the expense of those with less power. The balance was already out of whack, and we're intent on growing the divide.

@n64dd: I like this case as a thought exercise more than most people, I think. It plays on two important principles: The first is that one's freedom's can be impeded by parties other than the government, and the second is that "your liberty to swing your fist ends where my nose begins," which is a truism of law.

The principle cited by Kavanaugh here grants increased speech rights (assuming we grant him his widened definition of speech) to the owners of infrastructure specifically by allowing them to reduce similar liberties to users of that infrastructure.

The past several years I've grown very concerned about the granting of these types of liberties to those with the most powerful microphones and hammers at the expense of those with less power. The balance was already out of whack, and we're intent on growing the divide.

Well, first here you are either by default giving ISP´s common-carrier status or you are neglecting that as a private company the free speech rule does not apply.

Also, Kavanaugh's argument is not so much to grant speech rights but as to deny the common-carrier status to ISP´s, a common-carrier is under much stricter regulations. Also, there is much more to his argument than simply a free speech issue.

As he states several times, the opposition to the net-neutrality as it was done by the Obama administration FCC, is that that Congress has not made a clear and precise authorisation which

So let the infrastructure for internet to be owned by the public then?

That would be against the free market principal, also it would cost a fortune.

But ISP´s are yet to be common-carrier / Utility So the ISP can like GameSpot remove any user they see fit.

That would be against the free market principal, also it would cost a fortune.

But ISP´s are yet to be common-carrier / Utility So the ISP can like GameSpot remove any user they see fit.

And yet plenty of infrastructure is public. Roads, telephone phone poles, etc. Free markets don't always give us the biggest bang for our buck when it comes to delivering every service/product possible.

Sure, but the internet is a bit different since it´s not considered a Utility.

Also considering the state of many public roads you think that government-run utilities are a good thing? the same thing would be true about the internet, the government does not have the same incentive for expansion and improving as a private company.

That would be against the free market principal, also it would cost a fortune.

But ISP´s are yet to be common-carrier / Utility So the ISP can like GameSpot remove any user they see fit.

Given how important internet is today. Should the highway it uses be privately owned?

I absolutely DO think that public roads are a better than private roads through and through. If you want to talk about the current state of the internet, I do think we could use some government intervention to clamp down on these monstrous telecommunication companies. We currently have monopolies and there's a reason that Comcast, Time Warner, and AT&T are ranked annually as the most hated companies in the US.

The government does have incentive for expansion on utilities, just look at the interstate highway system. It was designed, funded, and built by the government. This flies completely in the face of your assumption that the government can't create.

Of course, it benefits more by private companies owning it than a government.

However given it importance, it should not be strictly regulated? To prevent abuse of it?

As to the roads, Potholeshighways are a bit different since it carries us all, but you know why the state government in many states have given "road franchises", it´s asimplematter of cost. The government can´t spend the amount that it requires to maintain and keep the current highway system up to spec, that is why many roads are in such terrible condition.

And I do not think the internet is in such a bad state, Google is moving fast and in major cities, they have a superior internet to anything the government would ever be able to do. Also, a government-run utility is subject to government regulation and also control, and do you really want uncle sam to know all your little dirty secrets, at least Google and Amazon is only using it to display ads and sell to ad companies.

Not really , things like GDPR and Net-Neutrality are a nuiance to the freedom that is the internet.

Not to mention article 13 that the EU tried to pass.

Or are you for those things?

In favour of GDPR and net neutrality, but not article 13.

How free is your internet if you can only use it at the mercy of a larger company that can block you simply because they don't like you?

Well, how is that any different from Gamespot blocking a user? or any different from a restaurant asking a customer to leave because they simply don´t like the employer the person has?

GDPR is a disgrace and only limits the internet´s freedom, you know how many Americans/non-eu visitors while on holiday in Europe have been blocked from visiting even simple news sites.

Didn´t know you were for chinese conditions.

Also, you know the reason behind GDPR? it´s all about money and control.

And yet plenty of infrastructure is public. Roads, telephone phone poles, etc. Free markets don't always give us the biggest bang for our buck when it comes to delivering every service/product possible.

Especially when there's the question of impeding speech/access to information. Imagine if a television conglomerate, for instance, covered up all stories relating to an environmental disaster in order to protect oil companies. There are rules preventing monopolization of the airwaves like that (though they are being weakened). This is perhaps even more significant. An internet provider could stifle all news stories and information relating to issues it didn't want covered (say, whether or not internet companies should be regulated). They reach far more people, and could effectively shut off the internet for large segments of society. imagine if, say, Woodward and Bernstein had been prevented from printing anything related to Watergate or if war reporters were prevented from showing footage of what was actually going on in Vietnam. That's potentially the sort of censorship we're looking at here.

Especially when there's the question of impeding speech/access to information. Imagine if a television conglomerate, for instance, covered up all stories relating to an environmental disaster in order to protect oil companies. There are rules preventing monopolization of the airwaves like that (though they are being weakened). This is perhaps even more significant. An internet provider could stifle all news stories and information relating to issues it didn't want covered (say, whether or not internet companies should be regulated). They reach far more people, and could effectively shut off the internet for large segments of society. imagine if, say, Woodward and Bernstein had been prevented from printing anything related to Watergate or if war reporters were prevented from showing footage of what was actually going on in Vietnam. That's potentially the sort of censorship we're looking at here.

@Jacanuk: "the government does not have the same incentive for expansion and improving as a private company."

Ironically, in many cases the government has a greater incentive for expansion and improvement. Prominent examples include the post office, rural roads, and telecommunications networks.

Imagine if Gamespot censured "free speech" oh wait there is no such thing as free speech when it comes to private companies. So ISP´s do not have a free speech requirement if an ISP wanted to censor like they were China nr. 2 , no one on earth could come and argue they are against the constitution.

So you are arguing on the basis of a false premise, NBC could if they wanted to stop any news they do not like and it would be perfectly ok.

You may not like it, and others may not like it but the only proper response is with your wallet not complaining that they are somehow against the law. Not even if the internet became a utility could you argue that they somehow had to abide by the 1st amendment. Same goes for Facebook and Twitter or any other social media platform.

Yes, but Gamespot is far different from the internet. There are, in fact, regulations and decisions that put radio and television in a different category than, say, a specialty forum, because those two regulate the flow of information to the public and monopolization and/or censorship of that flow would represent a far greater threat to free speech than censoring specialty forum. It is pretty obvious that the internet as a whole is far closer to the former than the latter. In fact, seeing how Gamespot is a subset of the internet, comparing censorship on Gamespot to censorship on the internet is completely faulty, a valid comparison would be censorship on Gamespot to censorship on, say, Fox. No one is arguing that they don't have a right to prevent their selective viewpoint, but if the entire medium of television were monopolized by that viewpoint that would be a problem. It's similar with the internet, but to an even greater degree. It would be functionally impossible for broadcast television, for example, to provide every possible slant on every possible piece of information. It is completely possible with the internet, though, and one of the features of the internet is that you can find literally any piece of information with any slant on it you want. If ISPs get to decide what information is valid and what isn't, that goes away. The internet as we know it goes away. The access to information we've become so accustomed to goes away. That is a threat to free speech comparable to two companies buying all the airwaves and restricting the programs which are aired.

Yes, but Gamespot is far different from the internet. There are, in fact, regulations and decisions that put radio and television in a different category than, say, a specialty forum, because those two regulate the flow of information to the public and monopolization and/or censorship of that flow would represent a far greater threat to free speech than censoring specialty forum. It is pretty obvious that the internet as a whole is far closer to the former than the latter. In fact, seeing how Gamespot is a subset of the internet, comparing censorship on Gamespot to censorship on the internet is completely faulty, a valid comparison would be censorship on Gamespot to censorship on, say, Fox. No one is arguing that they don't have a right to prevent their selective viewpoint, but if the entire medium of television were monopolized by that viewpoint that would be a problem. It's similar with the internet, but to an even greater degree. It would be functionally impossible for broadcast television, for example, to provide every possible slant on every possible piece of information. It is completely possible with the internet, though, and one of the features of the internet is that you can find literally any piece of information with any slant on it you want. If ISPs get to decide what information is valid and what isn't, that goes away. The internet as we know it goes away. The access to information we've become so accustomed to goes away. That is a threat to free speech comparable to two companies buying all the airwaves and restricting the programs which are aired.

@Jacanuk: "Not really , things like GDPR and Net-Neutrality are a nuiance to the freedom that is the internet."

Net neutrality is a nuisance to the freedom of the internet? Oh man...

Well, first we are not talking about censoring the "internet" but we are talking about censoring access. Same as with Gamespot, they are not censoring opinions, they are censoring who they want on their website. The same principle can be used on ISP´s and is being used by ISP´s. As you know no private company are required to abide by "free speech" there is no such thing, The FCC merely regulates who can get a licence and who if they wish to get a license, have to abide by certain rules.

And the Internet as we know is going away, look at Europe, more and more freedom is being taken away in the name of "privacy" when in fact all it does it make it easier to stop the free flow of information.

The same thing is luckily not as common in the US yet, and while net neutrality is an issue, luckily we can still visit pretty much any site we will (except of course the are blocked on ISP level)

@Jacanuk: History proves you wrong again. Electricity and telephone service failed to reach rural areas until government legislation to do so was enacted. Companies like FedEx still use the postal service for last mile delivery to a significant portion of customers because it isn't economical for them to do so.

@Jacanuk: History proves you wrong again. Electricity and telephone service failed to reach rural areas until government legislation to do so was enacted. Companies like FedEx still use the postal service for last mile delivery to a significant portion of customers because it isn't economical for them to do so.

Not sure how you think I was proven wrong? and history have you proven wrong in assuming that there is an incentive to provide anything but the basics. Go look at Europe or go look up google, and see who has provided the best fastest cheapest internet.

The government only has an incentive to provide the basic service, not the best