Biden’s FCC reinstituted (Obama-Era) net neutrality rules in April. They were suspended in August while a challenge lounged around in the federal court system. It only took four months, but the 6th Circuit has trashed the rules and told the FCC that it lacks the authority to regulate in this manner.
The Federal Communications Commission (FCC) regulations, which bar internet service providers from blocking or limiting access to users, violate federal law because the providers provide an information service, not a telecommunications service, U.S. Circuit Judge Richard Allen Griffin wrote for a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit.
We’ve opposed Net Neutrality, not least because its name, in typical Marxist fashion, is grotesquely misleading. But primarily as something of an online fairness doctrine.
A few years back, Free Speech Attorney Ken White, citing then Judge Kavanaugh (same guy), explained the problem of the government’s Obama-Era position of Net Neutrality.
Judge Brett Kavanaugh has ruled that Net Neutrality violates the First Amendment.
He’s written in numerous opinions that the government can’t restrict the “editorial discretion” of internet service providers or content networks absent a showing that a particular provider “possesses market power in a relevant geographic market.” Put another way, he believes that the First Amendment prohibits the government from telling ISPs and other communications providers that they have to carry competitor’s content unless the government’s made a showing that they have an anti-competitive level of power in a market. He’s blunt about it. “[T]he net neutrality rule violates the First Amendment to the U.S. Constitution,” he wrote in one dissent, …
… “[T]he FCC cannot tell Comcast how to exercise its editorial discretion about what networks to carry any more than the Government can tell Amazon or Politics and Prose or Barnes & Noble what books to sell; or tell the Wall Street Journal or Politico or the Drudge Report what columns to carry; or tell the MLB Network or ESPN or CBS what games to show; or tell SCOTUSblog or How Appealing or The Volokh Conspiracy what legal briefs to feature.”
Biden’s FCC re-upped the Obama rules, which the 6th Circus has now vacated, though this fight is far from over. The incoming Trump crowd and a Republican Congress may try to strengthen the position but how?
Judge Kavanagh’s remarks appear to justify the power of platforms to regulate content, permitting them to exercise a partisan interest in what appears on their pages through use–agreements or community standards. The GOP and Trump have expressed concern about that manipulative power over what have become modern-day public squares.
I think those things are likely to come into conflict at some point, resolved, hopefully by the free market, as users decide where to share content based on restrictions or the lack thereof. Tech oligarchs that like their private planes and yachts more than appeasing elected officials or their regulators will respond to market forces if they are strong enough.
Keeping the Feds out of it will help.
