President Trump’s criticism of mass media offers a refresher course in the First Amendment’s purpose and practical operation. Too many pundits and policymakers are flunking the course, including former FCC chairman Tom Wheeler, who championed the agency’s repealed net neutrality regulations.
The Press Clause of the First Amendment prohibits Congress from making any law that abridges the freedom of the press. This command is based on a simple insight: the government can’t control what it is powerless to regulate. Mr. Wheeler ignored this premise when he decided that the broadband internet, the most powerful form of mass media ever known, should be subject to the law of “common carriage” under “Title II,” the most intrusive form of government regulation ever known.
The more power government officials have to regulate mass media, and the more discretionary that power is, the more likely it is that the government (or some subset of it) will use that power for its (or their) own ends. Politically sophisticated officials know that merely raising the threat of discretionary government regulation (usually behind closed doors) can be enough to influence a media company’s behavior, a practice known as “censorship by proxy” or “de facto censorship.” This form of censorship gives government officials a means of circumventing the First Amendment that’s difficult to prove in court and can be done without the public knowing that censorship has occurred. The effectiveness of government regulatory threats may be amplified when used against internet intermediaries, who are likely to have “fragile commitments” to the free expression rights of other speakers.
Censorship by proxy is a powerful strategy for government control over the speech that marshals public opinion, but only so long as the government’s regulatory threat is credible.
The net neutrality regulations adopted by Mr. Wheeler’s FCC left no room for doubt about the credibility of regulatory threats aimed at internet service providers (ISPs). The regulations gave the FCC discretion to punish ISPs for any practice the agency deemed “unreasonable” while prohibiting ISPs from invoking the First Amendment’s protections. ISPs’ only legal defense against government overreach was the so-called “arbitrary and capricious” standard, a standard that is notoriously deferential to federal agencies. The resulting legal framework was ripe for governmental abuse through de facto censorship and, by its own logic, could easily be extended to so-called “edge providers” such as Google and Facebook.
This fundamental First Amendment threat was turned on its head by Democrats who imagine private corporations are a greater threat to internet freedom than the government. Senator Richard Blumenthal (D—Conn.) championed this view when he called the current FCC’s repeal of Wheeler’s net neutrality regulations a “danger to free speech” rather than a victory for it.
This view rejects the balance struck by the First Amendment. Though the Supreme Court has recognized that private companies can abuse their power to edit others’ speech, it has also recognized that “the presence of these risks is nothing new.” The authors of the Bill of Rights accepted this “calculated risk of abuse” as necessary to preserve the “higher value” of protecting speech from government intrusion.
The Wheeler-FCC took the opposite approach, one that bears greater resemblance to the “enlightened absolutism” of European monarchs than this nation’s First Amendment jurisprudence. The agency’s decision to regulate ISPs under Title II embraced a calculated risk of government censorship in order to prohibit a subset of internet intermediaries from exercising editorial discretion. This risk might have seemed benign or even beneficial to Democrats in 2015, when Barrack Obama was president and Hillary Clinton was the heir apparent.
They didn’t count on President Trump, whose open criticism of unfavorable media coverage has reminded Democrats that de facto censorship is a real and ever-present danger. When President Trump moved to block the merger of AT&T and Time Warner, Mr. Blumenthal (and many others) expressed deep concern that the President would use his executive power over the merger review process to punish Time Warner’s CNN for unfavorable coverage. During a hearing on the merger, Mr. Blumenthal asked the chief executives of both companies “to commit that [their] news coverage will in no way be influenced or impacted by what the President of the United States says about this transaction.” If ISPs were truly a greater threat to the First Amendment than the government, as the FCC’s net neutrality regulations presumed, Mr. Blumenthal’s question for AT&T at the merger hearing would have been equivalent to asking for a fox’s commitment to guard the henhouse.
Hypocrisy aside, it’s difficult to reconcile Mr. Blumenthal’s deep concern over the potential that AT&T (also an ISP) would concede to a potential request for de facto censorship during the Time Warner merger proceeding with Mr. Blumenthal’s unmitigated support for the Wheeler-FCC’s net neutrality regulations. The potential for de facto censorship is markedly lower in the antitrust context than in the context of FCC proceedings. In the antitrust context, the government bears the burden of proving its case in a court of law after intensive fact-finding. In FCC proceedings, however, the agency can take action directly against a regulated company under the amorphous “public interest” standard. The FCC’s procedures allow it to avoid judicial review of staff-level decisions for many years—long enough to kill most mergers outright. And even when an FCC decision is heard in court, the agency receives the most deferential level of review.
These procedural differences have Constitutional importance for the risk of censorship by proxy. The AT&T and Time Warner executives had little to lose by giving Mr. Blumenthal their commitment to stand strong against de facto censorship attempts, because the Trump administration’s antitrust case against the merger wasn’t credible. Given the government’s exceedingly slim chance of winning in court, any threats leveled by the Trump administration in the antitrust case would have rang hollow. If the merger had been reviewable by the FCC, however, the risk of de facto censorship would have been substantially higher. The FCC has a known track record of killing mergers without ever having to face an impartial judge in court, a track record AT&T experienced first-hand when it tried to merge with T-Mobile.
Congress has always recognized and accounted for the greater risk of de facto censorship posed by Title II regulation of mass media companies. Congress prohibited the FCC from regulating radio and television broadcasters as common carriers under Title II when the agency was created, because the harm to a free press would overshadow any benefits associated with Title II regulation. The Supreme Court extended this finding to cable operators, and Congress codified the Court’s decision.
ISPs are an integral part of mass media in the 21st century and are subject to the same risks of de facto censorship as broadcasters and cable operators. Democrats who support a Title II approach to net neutrality regulation are ignoring this fact at everyone’s peril.
