Speaking before the Media Institute in Virginia on Tuesday, the leading voice of the cable industry challenged the idea that net neutrality regulations enhance free speech. Quite the contrary, warned Kyle McSlarrow, CEO of the National Cable & Telecommunications Association, "the First Amendment is framed as a shield for citizens, not a sword for government." True enough, the First Amendment "promotes democratic values," McSlarrow added, "but it does so best by freeing citizens from government regulation of their speech, not by regulating it."

The NCTA's boss was responding to the Federal Communications Commission's proposed new Internet non-discrimination rules, which would put the kibosh on ISPs unnecessarily blocking or interfering with applications, and require them to be transparent about their network management practices. Advocates of net neutrality are "standing the First Amendment on its head," McSlarrow declared, when they invoke the amendment on behalf of this cause.

Kind of creepy

Presumably, when McSlarrow used the word "citizens," he was referring to Comcast, Time-Warner, Cox, and the rest of the cable industry, a presumption that the Supreme Court validated in its famous Santa Clara versus Southern Pacific Railroad case of 1886. But he insisted that he's talking about everybody else too. And it's not like the issue came out of nowhere. In fact, the FCC requested feedback on the First Amendment implications of its suggested rules in its Notice of Proposed rulemaking.

Would these rules impose "any burdens on access providers’ speech that would be cognizable for purposes of the First Amendment, and if so, how?" the FCC asked. And: "Would any burden on access providers’ speech be outweighed by the speech-enabling benefits of an open Internet that provides a non-discriminatory platform for the robust interchange of ideas?"

Some parties in this discussion, most notably the advocacy group Free Press, have argued that the FCC should apply "strict scrutiny" principles to ISPs. "Just as the First Amendment applies strict scrutiny to effectively ban speech-discrimination on streets and in parks, the FCC should apply strict scrutiny to ban such discrimination by network operators on the Internet," Free Press wrote to the FCC in June of 2008.

Needless to say, the NCTA doesn't like that idea. McSlarrow even called the strict scrutiny argument "kind of creepy." Here are his answers to the FCC's questions.

It hasn't happened here

Much of McSlarrow's speech reiterated what has become a mainstay of anti-net neutrality discourse, that the government is proposing a "solution in search of a problem."

"It is exactly that," he insisted. "Because all of the openness, all of the civic participation, all of the democratic engagement we could possibly want is happening right now . . . without net neutrality regulation." Yes, McSlarrow noted, there have been "a couple of isolated incidents that keep being held up as examples of what needs to be prevented"— presumably the Madison River ISP's agreement with the FCC not to block VoIP applications and the agency's 2008 Order sanctioning Comcast for P2P throttling. But, "nothing that suggests any threat to the openness of the Internet."

"I don't know how to say it any more clearly than this," McSlarrow declared. "Internet Service Providers do not threaten free speech; their business is to enable speech and they are part of an ecosystem that represents perhaps the greatest engine for promotion of democracy and free expression in history."

And this has important legal implications, McSlarrow continued, invoking the Supreme Courts' Turner Broadcasting vs. FCC decision of 1994. In that case, the high court narrowly upheld the constitutionality of the 1992 Cable Act, which established "must carry" rules requiring cable companies to set aside some of their channels for local TV broadcasters. But the Supremes also warned that lawmakers must show that they are addressing a real problem, not just an anticipated one.

When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply 'posit the existence of the disease sought to be cured.' It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will, in fact, alleviate these harms in a direct and material way.

That advisory "should ring loud and clear in the net neutrality proceeding," McSlarrow added. "Because when all the dire warnings of the net neutrality proponents are stripped away, there really are no signs of actual harm."

A strong implication

The NCTA also doesn't like all the talk coming from the FCC about how to handle "managed services" on the 'Net, which could include IP video. The agency says it wants to offer flexibility in this area, but only up to a point. "The growth of managed or specialized services might supplant or otherwise negatively affect the open Internet," the FCC's NOPR warns, noting, for example, that AT&T runs its U-Verse IP based video service on the same networks it offers Internet access.

"The strong implication" here, McSlarrow suggested, "is some kind of guaranteed amount of bandwidth capacity for services the government deems important." And that's where the First Amendment supposedly comes into play again. Net neutrality rules could infringe ISP First Amendment rights, NCTA argues, "because they could prevent providers from delivering their traditional multichannel video programming services or new services that are separate and distinct from their Internet access service." And cable companies are not broadcasting over the public airwaves, McSlarrow reminded his audience.

These rules could hurt applications providers too, McSlarrow warned, especially if they ban prioritized access rules, as the FCC is proposing. "The First Amendment protects the right not just to decide what to say, but how to say it," he continued. "Does the First Amendment really allow the government to prohibit a content or applications provider from paying to acquire the means to distribute its content in the form or manner it wishes?"

And here you thought the First Amendment just said that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Don't expect this debate to end any time soon.