In a surreal display Thursday, prominent Internet sites celebrated as the federal government seized control over the last known vehicle for free expression. Twitter, Reddit, and Buzzfeed all applauded the FCC takeover of the Internet under the guise of “Net Neutrality.” As these sites ceded freedom for short term convenience, the FCC commenced its crusade against ISPs, opening the door to further Internet regulation—regulation that may not be so benevolent.
In a prophetic 1819 statement, Supreme Court Chief Justice John Marshall proclaimed, “An unlimited power to tax [or regulate] involves, necessarily, a power to destroy.” (McCulloch v. Maryland) The FCC now claims such power over the Internet. In compliance with the D.C. Court of Appeals ruling in Comcast Corp. v. FCC (2010), the FCC dropped its ineffective classification of the Internet as an “Information Service,” and reclassified it as a “Telecommunication Service” subject to regulation under Title II of the 1934 Communications Act. This sets a dangerous precedent for free speech.
Not only does Title II provide the FCC with the power to outlaw ISP “fast lanes” (to the delight of many Internet activists), it also allows the FCC to make onerous inquiries into the management of ISPs and to set standards it considers “just and reasonable.” Though FCC Chairman Tom Wheeler assures us of his virtuous intentions, he cannot assure us the FCC and the omnipotent State will restrain itself from exercising its new found authority for its own benefit.
As we know from previous uses of regulatory agencies, the Executive will use every available means to restrict speech it disfavors. If the FCC designates the carrying of certain, unpopular websites as an unreasonable ISP practice, it will be able silence those speakers as a matter of law.
Former FCC Chairman Robert McDowell has warned of an Internet “Fairness Doctrine” compelling speakers to present controversial issues in ways with which they may not agree. Unfortunately, Thursday’s vote may have already set this plan into motion.
In times when the public celebrates submission, the courts stand as the last hope. Free speech as we know it today may depend upon it. Hopefully we will not look back upon this time and declare it as the moment we lost the Internet.