Wednesday, July 11, 2018

Roe is a distraction. The real problem is much, much worse.

The United States of America has always had a somewhat tenuous relationship with its own ideals.  The disconnect between "We hold these truths to be self-evident, that all men are created equal" on the one hand, and chattel slavery on the other, cannot result in anything other than some pretty severe cognitive dissonance.  But despite being deeply rooted in contradictions, the history of this country has nonetheless been one of steady (albeit all too often agonizingly slow) progress towards greater personal freedom and empowerment for all of its people, indeed for all of the people of the world.

All of this social progress has been built on a foundation of material prosperity driven by industriousness and technological advancement, which, in turn, was built on a bedrock of respect for objective truth.  We were able to invent the airplane and the transistor and put men on the moon not because "We're America, bitch", but because we had people who understood physics (and political science!), an understanding which once commanded respect.

No more.

Liberals should not delude themselves: Brett Kavanaugh will be confirmed to the Supreme Court, whereupon 242 years of social progress will begin to be methodically and deliberately unmade.  It has already begun, with the recent evisceration of the power of labor unions.  Roe v. Wade will probably be next to go; even if the court doesn't reverse it outright, they will twist the meaning of "undue burden" beyond the recognition of native English speakers.  And conservatives will celebrate, blissfully unaware that they have been the victims of an elaborate con.

You see, the fact of the matter is that opposition to Roe has nothing to do with a principled stance of defending a "right to life."  It is perfectly evident to anyone who looks at conservative policies today that they don't really care about life, they only care about birth.  If they really cared about life, they would care about health care and early childhood development and public education, and not ripping children from their parents.  But they don't.  After a woman has given birth, both she and her baby can go to hell for all that modern conservatives seem to care.

What is less evident is that even the semi-plausible concern for the "rights of the unborn" is a recent invention.  Modern conservatives would have you believe that Roe was a fringe decision that was immediately controversial.  It wasn't.  It was a 7-2 decision, and it was years before anyone thought to try to get it overturned.  And even then it was not a principled stance fighting for the "rights of the unborn" (what's next, fighting for the rights of the unconceived?), it was a cynical ploy to try to unite Protestants and Catholics to get them to vote for political candidates who would support segregation and be friendly to business.

All this is academic, though, because the abortion debate has been successfully and irredeemably (and, let is be ever-mindful, falsely) framed by conservatives to advance a wholly different agenda.  But the loss of personal reproductive freedom is just the tip of the iceberg.  In order to achieve this victory, conservatives have made a deal with the devil.  In exchange for lower taxes and less regulation and less government constraints on racial gerrymandering, they abandoned the truth.  They have allowed all manner of crackpottery -- birtherism, misogyny, and a dizzying variety of denialisms, from climate change to the Holocaust -- to don the mantle of respectability.  And that will ultimately cost us much, much more than our freedom.

To cite but one example which is not, as far as I can tell, on anyone's radar screen, having been totally eclipsed by all the hysteria over abortion (which is exactly what conservative strategists intended, by the way): Brett Kavanaugh has expressed the view that internet service providers have a first-amendment right to exercise editorial control over the content they deliver, and so it is not only wrong as a matter of policy for the government to impose net-neutrality rules, it is unconstitutional.

The utter absurdity (to say nothing of the extreme danger) of this position should be immediately obvious, and it would be immediately obvious if we still lived in a society that valued truth and education, but we don't.  Kavanaugh's argument is that the Internet is like cable TV: because a cable operator can decide what channels to offer, and ISP should be equally free to decide what web sites its users should be allowed to access.

That might be a valid argument if the internet had been privately developed, but it wasn't.  The internet was developed by the government with taxpayer dollars, which is to say, by the People.  There are other fundamental structural differences between cable TV and the Internet too: cable TV providers typically have to pay for content.  ISPs don't.  Furthermore, cable TV providers are subject to government regulations on what content they carry, and have been since their inception.

Brett Kavanaugh would throw all that precedent out the window and put both cable TV and the internet forever out of the reach of public regulation by declaring both to be morally equivalent to printing presses.  Except that they aren't.  The internet in particular is not a printing press.  Web servers are (the modern equivalent of) printing presses.  The internet is not the means of producing content, it's the means of delivering it.  It is the modern equivalent of the postal service, access to which is enshrined in the Constitution as a public right.  (Originalists insist that the Constitution keeps pace with technology when it comes to weapons, but not when it comes to communications.  Originalists are hypocrites.  What else is new?)

I am able to write this blog and you are able to read it only because of net neutrality.  Yes, this blog is hosted by Google, but if Google tried to shut it down I could move it somewhere else.  That is the beauty of the internet.  It enables free speech like nothing else before it in human history, not even the printing press.  But if your ISP decides to block access to blog.rongarret.info then there is nothing you or I could do about it.  That would be the very antithesis of free speech.  Editorial control is something that should be practiced by content producers, not distributors.  Editorial control practiced by content producers is free speech.  Editorial control practiced by distributors is censorship.

Brett Kavanaugh either does not understand this, or he does and is willing to intentionally disregard this truth to promote the business interests of large telecommunications companies.  Either way, it should disqualify him from a seat on the U.S. Supreme Court.  But I haven't heard any politician or advocacy group advance this argument.  Everyone is acting like deer in the headlights of Roe v. Wade.

The abortion debate was never anything more than a cynical ploy by conservatives to get people who care about freedom, social progress, and truth to take their eye off the ball.  And you know what?  It worked.

13 comments:

Peter Donis said...

@Ron:
Brett Kavanaugh has expressed the view the internet service providers have a first-amendment right to exercise editorial control over the content they deliver

I hadn't seen this one. Can you give a link?

coby said...

This is not a primary source, but I heard about that here:

"And they did that under the theory that when unions bargain, that is a First Amendment matter, and so, therefore, there can be strict restrictions on the union. The same or very similar logic is what Judge Kavanaugh used when he argued that net neutrality is unconstitutional. His claim was that if you regulate the internet service provider’s ability to not slow down certain content, then that is regulating their ability to determine which speech you get through their pipelines, and so that’s a violation of the First Amendment. I suspect we’re going to see this reasoning. I mean, again, this is a major project of the Roberts Court, is to transform the First Amendment, which is supposed to be about free speech, into a vehicle for deregulating business. And what he has shown in that net neutrality case is he is eager to jump onto this project, and probably has some new ideas for other places they can go."

Ron said...

@Peter:

OMG, I can't believe I left out that link. It was the most important one in the whole piece! I've added it now, but here it is:

https://arstechnica.com/tech-policy/2018/07/net-neutrality-rules-are-illegal-according-to-trumps-supreme-court-pick/

Peter Donis said...

here it is

I read the actual dissenting opinion pointed to: basically he appears to think that making ISPs common carriers is unconstitutional. If this were true, I don't see why it wouldn't also apply to the phone companies. Sheesh. This is worse even than the stuff Ajit Pai has been saying.

Peter Donis said...

Btw, when the FCC asked for filings regarding its intention to rescind the net neutrality rules, I posted a filing, it's here:

https://www.fcc.gov/ecfs/filing/10427019504580

The basic argument I made was that, to anyone who knows how the Internet actually works, the basic service provided by an ISP is obviously a telecommunications service, not an information service. Requesting a website in your browser by its URL is like calling someone using their phone number.

One of the ways ISPs like to muddy the waters is by pointing out that they provide lots of additional services bundled with their basic connectivity--for example, email, a personal website, even DNS. It's important to realize that these are all separate services: they are not provided by the routers that do the basic connectivity, they are provided by separate endpoints run by the ISP. The fact that ISP business models lead them to bundle all these services together does not make the basic connectivity they provide an information service, any more than phone companies bundling extra services like directory assistance makes their basic connectivity an information service.

Since the basic argument that opponents of net neutrality are using is that broadband connectivity is an information service, not a telecommunications service, I think it's very important to make the counterargument as widely known as possible.

Ron said...

Don't tell us. Tell your senators. (Seriously, call your senators. We might actually be able to move the needle on this.)

Publius said...

Distraction?

@Ron:
>Liberals should not delude themselves: Brett Kavanaugh will be confirmed to the Supreme Court, whereupon 242 years of social progress will begin to be methodically and deliberately unmade.. . .
>Roe v. Wade will probably be next to go; even if the court doesn't reverse it outright, they will twist the meaning of "undue burden" beyond the recognition of native English speakers.

Bans on abortion are social progress. You know, respecting the sanctity of human life, life instead of death, all that good stuff.

> Modern conservatives would have you believe that Roe was a fringe decision that was immediately controversial. It wasn't. It was a 7-2 decision, and it was years before anyone thought to try to get it overturned.

The Roe V. Wade decision was immediately controversal with . . . constitutional lawyers. John Hart Ely, of Yale Law School, wrote the most influential law review article on it, The Wages of Crying Wolf: A Comment on Roe v. Wade, in which he wrote:

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. Nor is it explainable in terms of the unusual political importance of the group judicially protected vis-a-vis the interest that legislatively prevailed over it.. . . At times the inferences the Court has drawn from the values Constitution marks for special protection have been contriversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.

It is, nevertheless, a very bad decision. Not because it will perceptively weaken the Court--it won't; and not because it conflicts with either my idea of progress or what the evidence suggests is society's--it doesn't. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be. p. 947

The Roe V. Wade decision was also immediately controversal with . . . the public.
At the time of decision, 46 states had laws restring abortion. Which one would think reflects the moral consensus on the issue.
Here is an NBC report from 1973 after the decision.
The organization, National Right to Life Committee (NRLC), was founded in 1968.

Publius said...

The Real Problem? Part 1

>Kavanaugh has expressed the view that internet service providers have a first-amendment right to exercise editorial control over the content they deliver, and so it is not only wrong as a matter of policy for the government to impose net-neutrality rules, it is unconstitutional.

The utter absurdity (to say nothing of the extreme danger) of this position should be immediately obvious, and it would be immediately obvious if we still lived in a society that valued truth and education, but we don't.


The situation we have here is the failure to apply truth and education.
Kavanaugh is right, given he is following stare decisis of previous Supreme Court decisions.

First, let's dispose of your irrelevant arguments:
1. The internet was developed by the government with taxpayer dollars
2. cable TV providers typically have to pay for content. ISPs don't.
3. cable TV providers are subject to government regulations on what content they carry, and have been since their inception.


R1: It doesn't matter that the intellectual property of the internet came from taxpayer funded research. The 1st amendment doesn't have an exception for "the government invented it" or "the government paid for it."

R2: Again, no exception to "no law . . . abridging the freedom of speech" for the cases that you bought content, or didn't buy content.

R3: Cable TV providers also have geographic monopolies on providing service; hence they are regulated as a natural monopoly.
The FCC did not make an argument about ISPs possessing market power in a relevant geographic market as justification for net neutrality.

>Web servers are (the modern equivalent of) printing presses. The internet is not the means of producing content, it's the means of delivering it.

> Editorial control practiced by content producers is free speech. Editorial control practiced by distributors is censorship.

>Brett Kavanaugh either does not understand this, or he does and is willing to intentionally disregard this truth to promote the business interests of large telecommunications companies.

Ah, the old "he's either an idiot [especially with technology], or he's corrupt" dismissal of someone's views you disagree with.
You likely do more know about technology that Brett.

Let's see, though, what might Brett know better than you? Could it be the law?

Publius said...

The Real Problem? Part 2
Kavanaugh's dissent
Kavanaugh gives two arguments on why the FCC cannot impose net neutrality
1) Congress did not clearly authorize the FCC to issue the net neutrality rule. [p. 73, 75-91]

2) The net neutrality rule violates the First Amendment [p. 74,91-106]

The rule violates the First Amendment,
as that Amendment has been interpreted by the Supremee Court.
Absent a demonstration that an Internet service
provider possesses market power in a relevant geographic
market – a demonstration that the FCC concedes it did not
make here – imposing common-carrier regulations on Internet
service providers violates the First Amendment.


The threshold question is whether the First Amendment
applies to Internet service providers when they exercise
editorial discretion and choose what content to carry and not
to carry. The answer is yes.


The keys to why Kavanaugh is correct are found in two prior Supreme Court cases - Turner Broadcasting System, Inc v. FCC (1997) and Turner Broadcasting System, Inc v. FCC (1994).

First Kavanaugh discusses your view government regulator of the distributors, or pipe operators, has no First Amendment issue, as they are just transmitting third-party content and did not exercise protected editorial discretion:

The Turner Broadcasting cases addressed "must-carry"
regulation of cable operators. The relevant statute required
cable operators to carry certain local and public television
stations. Proponents of must-carry regulation argued that the
First Amendment posed little barrier to must-carry regulation
because cable operators merely operated the pipes that
transmitted third-party content and did not exercise the kind
of editorial discretion that was traditionally protected by the
First Amendment.


That argument was made in the Turner Broadcasting cases.

What happened?

The Supreme Court, speaking though Justice Kennedy in
both Turner Broadcasting cases, rejected that threshold
argument out of hand. The Court held that "cable operators
engage in and transmit speech, and they are entitled to the
protection of the speech and press provisions of the First
Amendment."


You see that - "rejected that threshold argument out of hand."

The Supreme Court decided in the Turner cases that the distributors, or pipe operators, ARE protected by the speech and press provisions of the First Amendment.

Publius said...

The Real Problem? Part 3
Kavanaugh comments on the effect of the Turner decisions:
The Court’s ultimate conclusion on that threshold First
Amendment point was not obvious beforehand. One could
have imagined the Court saying that cable operators merely
operate the transmission pipes and are not traditional editors.
One could have imagined the Court comparing cable
operators to electricity providers, trucking companies, and
railroads – all entities subject to traditional economic
regulation. But that was not the analytical path charted by the
Turner Broadcasting Court. Instead, the Court analogized the
cable operators to the publishers, pamphleteers, and bookstore
owners traditionally protected by the First Amendment.


Next Kavanaugh discusses the application of the Turner decision to ISPs:

Here, of course, we deal with Internet service providers,
not cable television operators. But Internet service providers
and cable operators perform the same kinds of functions in
their respective networks. Just like cable operators, Internet
service providers deliver content to consumers. Internet
service providers may not necessarily generate much content
of their own, but they may decide what content they will
transmit, just as cable operators decide what content they will
transmit. Deciding whether and how to transmit ESPN and
deciding whether and how to transmit ESPN.com are not
meaningfully different for First Amendment purposes.


Indeed, some of the same entities that provide cable
television service – colloquially known as cable companies –
provide Internet access over the very same wires. If those
entities receive First Amendment protection when they
transmit television stations and networks, they likewise
receive First Amendment protection when they transmit
Internet content. It would be entirely illogical to conclude
otherwise. In short, Internet service providers enjoy First
Amendment protection of their rights to speak and exercise
editorial discretion, just as cable operators do.

Publius said...

The Real Problem? Part 4
The FCC advanced two arguments as to why the Turner decisions do not apply:

1. Many ISPs do not actually exercise editorial discretion to favor some content over others. For that reason, the FCC contends it can prevent them from exercising editorial discretion.

I find that argument mystifying. The FCC’s “use it or
lose it” theory of First Amendment rights finds no support in
the Constitution or precedent.
[p. 96]

2. The FCC suggests that Turner may not apply the same way in the internet context because the ISPs do not face the same scarcity-of-space problem that a cable operator might face.

That argument, too, makes little sense as a matter of basic
First Amendment law. First Amendment protection does not
go away simply because you have a large communications
platform.
[p. 98]

Kavanaugh summarizes:
In short, the Supreme Court’s Turner Broadcasting
decisions mean that Internet service providers possess a First
Amendment right to exercise their editorial discretion over
what content to carry and how to carry it.. . .
The Turner Broadcasting cases were
landmark decisions that were intended to (and have) marked
the First Amendment boundaries for communications
gatekeepers in the 21st century. And under those decisions,
the First Amendment does not allow the FCC to treat Internet
service providers as mere pipeline operators rather than as
First Amendment-protected editors and speakers.


HENCE, once one properly applies Supreme Court precedent, the FCC cannot impose net netrality, as it violates the First Amendment (as interpretted by the Court). The pipes have First Amendment rights.

@Ron:
>I am able to write this blog and you are able to read it only because of net neutrality.

Really? I've read your blog for years without net netrality. I've used the internet for decades without net neutrality.

Have you ever considered that an internet without net neutrality could be better?

Ron said...

@Publius:

> Bans on abortion are social progress. You know, respecting the sanctity of human life, life instead of death, all that good stuff.

That might be true if the idea that life begins at conception were scientifically defensible or a long-standing tradition among evangelicals, but it is neither. It is a long-standing tradition among *Catholics* (and even there "long-standing" means a few hundred years, which is actually fairly recent relative to the age of the church). But the addition of *protestants* to the anti-abortion ranks is a recent development and a transparently cynical political ploy.

> What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution

Only if you ignore the Ninth Amendment. Which conservatives often do (Robert Bork was the poster child for this).

> The 1st amendment doesn't have an exception for "the government invented it" or "the government paid for it."

True. But the Constitution does provide for intellectual property. If the internet were a private invention, there *might* be an argument to be made that private companies can restrict access to it on IP grounds. But it wasn't, so there isn't.

> Cable TV providers also have geographic monopolies

So do ISPs.

> The FCC did not make an argument about ISPs possessing market power in a relevant geographic market as justification for net neutrality.

If that's true (I don't know) it was an oversight. It is clear that ISPs have exactly the same market power as other telecommunications companies, because, with very few exceptions, ISPs *are* the telecommunications companies.

> Let's see, though, what might Brett know better than you? Could it be the law?

Technologists generally understand the law much better than lawyers understand technology. (This is one of the reasons that the laws governing technology are such a mess.)

> The Supreme Court decided in the Turner cases that the distributors, or pipe operators, ARE protected by the speech and press provisions of the First Amendment.

https://www.oyez.org/cases/1993/93-44

"The Court held that the must-carry provisions were content neutral, thus NOT a violation of the First Amendment [emphasis added]. The rules were not determined by the programming content, but by broadcast method. The rules promote fair competition in television programming. Congress recognized that the public television stations had an intrinsic value to the American public and were in economic peril of disappearing due to the cable television industry's monopoly. The rules do not force the cable companies to alter their message."

> Really? I've read your blog for years without net netrality.

No, you haven't. The internet has always been open and neutral since its inception, even if it was not legally required to be until recently.

> Have you ever considered that an internet without net neutrality could be better?

Better for whom? Certainly it would be better if you're a large telecom (which is why they are lobbying so fiercely against net neutrality). But for the cause of free speech? No. Absolutely not.

Peter Donis said...

@Publius:

Now go read the concurring opinion in the case from which you're quoting Kavanaugh's dissent, which refutes each of his arguments:

https://www.cadc.uscourts.gov/internet/opinions.nsf/06F8BFD079A89E13852581130053C3F8/$file/15-1063-1673357.pdf

Regarding the first argument (that Congress did not clearly authorize the FCC to issue the net neutrality rule):

"[T]he Supreme Court, far from precluding the FCC’s Order due to any supposed failure of
congressional authorization, has pointedly recognized the agency’s authority under the governing statute to do precisely what the Order does."

The opinion then refers to the well known Supreme Court cases in which the Court specifically said that the FCC could regulate ISPs as common carriers (which at that time the FCC was not doing, but which the 2015 net neutrality rules did). In fact, the opinion notes that Scalia's dissent in the Brand X case gave the opinion that the FCC could *only* regulate ISPs as common carriers: in his opinion, the statute left no other option.

Regarding the second argument (that ISPs have a First Amendment right to control content):

"[T]he net neutrality rule applies only to “those broadband providers that hold themselves out as neutral, indiscriminate conduits” to any internet content of a subscriber’s own choosing."

In other words, *if* an ISP were to explicitly tell its customers that it was going to filter content, it could indeed filter content. But of course no ISP does that, because nobody wants to buy a content-filtered Internet connection. And once an ISP has sold a customer a neutral, unfiltered Internet connection, it can't then turn around and claim a First Amendment right to filter it, because that would be a different product from the one it sold. And, as the opinion notes, no Supreme Court decision has ever said otherwise.

In short, Kavanaugh has not correctly stated or analyzed the Supreme Court precedents on which he ostensibly relies.