Today’s #SubCommTech hearing on net neutrality will focus on the economic impacts of the Federal Communication Commission’s (FCC) decision to regulate the Internet as a “common carrier” service. But as the D.C. Circuit Court of Appeals prepares to decide the legality of the FCC’s new Internet regulations, people are starting to recognize there is something far more important than money at stake. The case may redefine free speech in a way that subjects the Internet to the sort of censorship that prevailed during the era of McCarthyism in the United States. 

While some may view the danger to free expression posed by the FCC’s net neutrality rules as farfetched, our nation’s history proves otherwise. The McCarthy era during the Second Red Scare of the mid-twentieth century demonstrated how easily our government could ride roughshod over free expression without eternal vigilance over the protections of the First Amendment. Unfortunately, it is human nature to discount the severity of a threat that largely predates living memory and allow our vigilance to wane when even the gravest of perils becomes shrouded by time. 

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It appears net neutrality proponents have forgotten the threat of government censorship that inevitably arises when the state exercises plenary authority over the means of disseminating mass communications. The FCC’s decision to regulate Internet service providers (ISPs) as “common carriers” under Title II of the Communications Act gives the government enormous power to engage in proxy censorship — i.e., to coerce ISPs into censoring the Internet on the government’s behalf. 

The United States has a sordid history of using proxy censorship as a means to circumvent constitutional and other constraints on governmental efforts to sanction disfavored communications. In the 1940s, the Special Committee on Un-American Activities declared that “[w]hile Congress does not have the power to deny to citizens the right to believe in, teach, or advocate communism, fascism, and nazism, it does have the right to focus the spotlight of publicity upon their activities.” This declaration ultimately led to the publication of blacklists during the McCarthy era “with the expectation that private parties would seek out and sanction malefactors who lay beyond the reach of the government.” This approach was so successful in silencing dissenting views that it was soon used for more widespread political oppression, including by groups who “consciously adopted similar tactics in the effort to eviscerate civil rights initiatives.” 

Proxy censorship has never disappeared entirely and is already being used to suppress information on the Internet. The “Good Samaritan” provision in Section 230 of the Communications Decency Act sanctions the right of ISPs to block “offensive material” that a user “considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” This provision’s purpose is “to encourage [ISPs] to self-regulate the dissemination of offensive material over their services.” As a result, most ISPs have adopted acceptable use policies that prohibit the transmission of potentially offensive information, and non-governmental organizations have relied on these policies to persuade ISPs to remove Internet content

Section 230 does not currently require ISPs to act as censors because, until recently, it was presumed that governmental attempts to legally bind ISPs to act as proxy censors would violate the First Amendment. 

That presumption will no longer constrain government efforts to censor the Internet if the FCC wins its net neutrality case. A critical component of the FCC’s net neutrality defense is the argument that ISPs have no First Amendment rights. In the absence of such rights, the government could make proxy censorship provisions like Section 230 mandatory rather than permissive. Fear of the FCC’s newfound regulatory power under Title II would also give ISPs strong incentives to join forces with less explicit proxy censorship efforts in order to avoid costly new rules and massive fines

This frightening prospect appears lost on Internet advocates such as the Electronic Frontier Foundation, who simultaneously support the FCC’s approach to net neutrality while applauding Apple’s refusal to give the government “backdoor” access to encrypted Internet communications. Apple’s resistance to government requests for unimpeded access to private information is worthy of admiration, but it should not be forgotten that Apple has the luxury of choosing to resist without facing the prospect of punitive regulatory action. 

Would Apple have stood so firm against coercion if it were subject to pervasive government regulation under Title II? In that scenario Apple would have required FCC approval for all nine of its acquisitions last year, including its $3 billion deal to buy Beats Electronics. The FCC is notorious for taking more than a year to review even trivial deals in order to extract unrelated concessions from the companies it regulates. If the FCC had jurisdiction over Apple, it could have conditioned the Beats deal on Apple’s “voluntary” agreement to create a government backdoor to its information systems. 

Harold Feld (senior vice president at Public Knowledge) was right when he warned against becoming “so dazzled by the promise of new technology that we forget the foundational principles on which [mass communications] networks [and our freedoms] must be built.” It is as true today as ever that government control of mass media communications systems ultimately destroys the freedom of the press. As the Supreme Court recently reminded us, “the First Amendment itself reflects a judgement by the American people that the benefit of its restrictions on the Government outweigh the costs,” and “our Constitution forecloses any attempt to revise that judgment” by the FCC. 

But that’s just what the FCC’s net neutrality order does: It revises the judgment of the American people that private control of mass media communications systems, however imperfect, is preferable to government control. That’s why the FCC is likely to lose its net neutrality case in court.

Campbell is a former Wireless Bureau chief at the FCC.