Fund Your Utopia Without Me.™

26 February 2015

Net Neutrality Is Anything But Neutral


Net Neutrality


‘In Venezuela, with Chavez, really an incredible revolution – a democratic revolution – to begin to put in place things that are going to have an impact on the people of Venezuela. The property owners and the folks who then controlled the media in Venezuela rebelled – worked, frankly, with folks here in the US government, worked to oust him – but he came back with another revolution, and then Chavez began to take very seriously the media in his country.’ 

– Mark Lloyd, Obama’s associate general counsel and Chief Diversity Officer at the Federal Communications Commission of the United States from 2009-2012, spoken at the National Conference for Media Reform in Minneapolis, Minnesota, 10 June 2008 



Although I have yet to read the proposed regulations (Who has other than Google & Free Press and other assorted Leftist groups that are now said to be afraid that the government is 'going to far'???) because they have not been released, it is quite possible that they will – or may in the future – require that website owners, including bloggers, be licensed. In this scenario, you will be required to get a licence and, if you fail to do so, the government can mandate your internet provider deny service to you. You will either have to comply or forego your blog. 

A lot of these LIV Net Neutrality supporters believe that these regulations will do nothing more than making the internet ‘fair’. If that were the case, then the FEC would not be involved. Net Neutrality rules and regs have already been found unconstitutional. 

One would think – or at least hope – that any infringement on the First Amendment would result in these regulations being struck down as unconstitutional. Websites such as Drudge are media – just as the New York Times – and operations and regulations would infringe on the right of freedom of the press. 

My blog, in the very least, should be protected under the right to free speech. It SHOULD be protected under the right of freedom of the press, too. 

The First Amendment was written during a time when it was quite normal for ‘average citizens’ to pass out handbills, treatises, etc, of their own design. In other words, the Founders recognised that the press was not limited to established newspapers. The bloggers of today are the equivalent of Thomas Paine in the 18th century. 

‘The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. 
I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: ‘Congress shall make no law . . . abridging the freedom . . . of the press. . .’ Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints…In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. 
The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people. 
In other words, we are asked to hold that, despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of ‘national security.’ The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to ‘make’ a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. 
The Founding Fathers gave the free press the protection it must have [to] bare the secrets of government and inform the people.’ 
– Justice Hugo Black, writing for the majority, in New York Times Co. v United States, 403 U.S. 713 (1971) 


The Free Press Clause protects the freedom to publish, not solely writers and commercial publishers. The Founders intended for the lowliest, volunteer pamphleteer have the same constitutional protections as the Publisher of the New York Times or ‘journalists,’ who are paid for their work. The protection is to the publication – IN ANY MANNER – not merely to whom is doing the publishing (just as lawmakers were not full-time and had other jobs in the ‘real world,’ the Founding Fathers recognised that one could be both a farmer and a member of the ‘press.’) In the first case the Supreme Court dealing with the Free Press Clause, Lovell v City of Griffin, 303 U.S. 444 (1938), Chief Justice Charles Evans Hughes defined ‘press’ as ‘every sort of publication which affords a vehicle of information and opinion’ based upon the writings of the Founding Fathers. 

The ‘press’ be it someone at the NYT or a blogger has First Amendment rights and CANNOT be prosecuted for seeking and publishing information. 

If Net Neutrality were about monopolies and fair use of the ‘pipes’, the FEC would not be involved. The FEC is involved because the government wants to crackdown on what it would label ‘in-kind contributions’. For example, my future posts on Her Royal Thighness would be classified as ‘in-kind contributions’ to whomever is running against her even though all that I am doing is exercising my right of free speech. 

Bear in mind that this administration claimed in Citizens United before the Supreme Court that, theoretically, the government could BAN BOOKS and that pamphlets could be treated in the same manner as child pornography. Who made that argument on behalf of the government? 

None other than Supreme Court Justice Elena Kagan. 

In the course of the argument, Deputy Solicitor General Malcolm Stewart, an experienced Supreme Court litigator, argued that a 1990 precedent, Austin v. Michigan Chamber of Commerce, gave the government the power to limit any political communication funded by a corporation, even a nonprofit such as Citizens United.Justice Samuel Alito asked Stewart if that power would extend to censoring political books published by corporations. Stewart responded — consistent with the government’s position at all stages of the case — that yes, it would. There was an audible hush — if such a thing is possible — in the court. Then Justice Alito, appearing to speak for the room, merely said, “I find that pretty incredible.” 
Incredible or not, that was, and had been for many years, the position of the U.S. government. But until that moment, it seemed to have never quite sunken in with the justices. Americans are willing to accept far more abridgements of free speech than we sometimes like to believe, but the idea of banning books strikes an emotional chord that something described simply as “prohibitions and limits on campaign spending” does not. Americans may not always live up to the Bill of Rights, but Americans do not ban books. A stunned Court eventually asked the parties to reargue the case, to consider whether Austin should be overruled. 
On reargument last September, Solicitor General Elena Kagan tried to control the damage, arguing that the government never actually had tried to censor books, even as she reaffirmed its claimed authority to do just that. She also stated that “pamphlets,” unlike books, were clearly fair game for government censorship. …And the FEC has attempted to penalize publishers of magazines and financial newsletters, only to be frustrated by the courts. 

Net Neutrality is not really about 'tubes', Comcast (which will almost certainly be granted a waiver) and Netflix. The fact that the FEC has been involved should tell you exactly what this is about. The Left has been outraged by the Court's decision in Citizens United for years. It has developed Citizens United Derangement Syndrome - CUDS. In my opinion, Net Neutrality is actually, at least in part, the Left's attempt to undermine Citizens United through the backdoor. 

Unfortunately for the Too-Cool-For-School administration and its Comrades, their new massive overreach may well turn out to be illegal. Why? The FCC may very well have violated the Administrative Procedure Act of 1947

According to the Attorney General's Manual on the Administrative Procedure Act, drafted after the 1946 enactment of the APA, the basic purposes of the APA are: 
* to require agencies to keep the public informed of their organization, procedures and rules; 
* to provide for public participation in the rulemaking process; 
* To establish uniform standards for the conduct of formal rulemaking and adjudication; 
* to define the scope of judicial review. 
The APA's provisions apply to many federal governmental institutions. The APA in 5 U.S.C. 551(1) defines an "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency", with the exception of several enumerated authorities, including Congress, federal courts, and governments of territories or possessions of the United States. Courts have also held that the U.S. President is not an agency under the APA. Franklin v. Mass., 505 U.S. 788 (1992).
Rules and regulations issued by federal administrative agencies are published chronologically in the Federal Register. Rules and regulations are then organized by topic in a separate publication called the Code of Federal Regulations. In comparing publication of regulations to publication of statutes, the Federal Register is analogous to the United States Statutes at Large and the Code of Federal Regulations is analogous to the United States Code.


Yes, the Administrative Procedure Act (APA) permits agencies to finalize some rules without first publishing a proposed rule in the Federal Register.
This exception is limited to cases where the agency h as “good cause” to find that the notice‐and‐ comment process would be “impracticable, unnecessary, or contrary to the public interest.” These situations may include emergencies where problems must be addressed immediately to avert threats to public health and safety, minor technical amendments and corrections where there is no substantive issue, and some instances where an agency has no discretion to propose a rule because Congress has already directed a specific regulatory outcome in a law. The agency must state its reasoning for finding good cause in the preamble of the final rule published in the Federal Register.
There are other exceptions to conventional notice‐and‐comment rulemaking. An agency may go straight to final rulemaking without a proposed rule when they issue internal agency procedures, rules that affect only federal employees, and rules that manage federal property and real estate. Even these types of rules can be subject to proposed rulemaking because of a special statutory requirement or because an internal agency rule also has a substantial effect on the public. 
Agencies can also issue and enforce rules by using “actual notice,” which requires direct notification of all affected persons and entities. Because it is difficult to pinpoint every person and entity affected by a rulemaking, this option is used mostly for rules that have a very narrow effect on known or readily definable persons or corporations.'

It doesn't appear that the FCC's Net Neutrality rulemaking falls within any of the exceptions. 

PS: If the APA of 1947 sounds familiar, it is because Obama violated it when he issued his Executive Amnesty.


'Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us? The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents. We who have the final word can speak softly or angrily. We can seek to challenge and annoy, as we need not stay docile and quiet.’ 

– Justice William O Douglas, Colten v Kentucky, 407 U.S. 104 (1972) 


‘The Constitution is not neutral. It was designed to take the government off the backs of the people.’

- Justice William O Douglas, The Court years, 1939-1975: The Autobiography of William O Douglas, 1980


For those that brought us to this infamous day in American history, may your children curse you, may you die a very slow, very painful, and very lonely death, may your countrymen dig up your bones and crush them into nothingness, and may your name forever live in infamy.  You will be loathed.


If you like your internet, you can keep your internet...


(Fine print: but you probably won't be able to. We're doing this FOR you because you are just too Grubered to know better)



UPDATE: Phil Kerpen has tweeted an, ahem, 'interesting' quote:



View image on Twitter



Just remembered this classic quote about a public utility Internet paving the way for silencing climate skeptics.



Yes, yes, yes!



http://tinyurl.com/odnqw7p





7 comments:

Anonymous said...

Good article. Your point that the first amendment protects private pamphleteers (and by extension, bloggers) is even more obvious when it is understood that the word "press" in the constitution refers to the printing press. It is the companion right to free speech; free speech protects the spoken word, free press protects the written word. It is the content itself that may not be censored.
Unfortunately, most people, including most judges, are unaware of this critical nuance.

Predictable-History said...

Thanks, anon.

But, Net Neutrality will NEVER be used to crackdown on internet speech!

Army investigated Medal of Honor recipient … over an Amazon book comment

http://hotair.com/archives/2015/02/26/army-investigated-medal-of-honor-recipient-over-an-amazon-book-comment/comment-page-1/#comment-9191880

Doc Holliday said...

Hey Sophie! You made the side bar link at AceofSpades! Nice job.

--Doc Holliday

egd said...

As with the Texas immigration order, regardless of any order by a court, the Obama administration will proceed to enforce the rules it wants.

That's the problem with this type of regulation. It's not the direct punishment, but the chilling effect it has on others who won't speak because they fear government retaliation.

ShainS said...

Great post, Sophie.

I suspect the future legacy of the fascist left in America will be something akin to: we literally buried you, from Death Panels to Death Channels ...

Deb said...

Great post, very glad I stumbled upon your blog. Those who are committed to liberty, must speak loudly and clearly..even against those who would silence the voices of dissent. Preferably with a megaphone.)

Caynon said...

Perfect article. The internet SHOULD be protected under the First Amendment. And this whole, "bloggers should get a license to post" argument is absurd.
Could you imagine if history was put under the same pretext?
"Hey Martin Luther...I don't think we should publish these 93 Theses, since we don't have a license, you know...."
Or...
"Mr Paine, you can't write that pamphlet....you don't have a license. That's just common sense!"