Sen. Al Franken (D-Minn.) blasted the prospective Comcast-NBC Universal merger and pressed Supreme Court nominee Elena Kagan for her views on net neutrality during her confirmation hearing this week.
Kagan declined to weigh in on the pending merger, but said that First Amendment rights should not be used as a kind of free pass when companies are charged with anti-competitive conduct.
"The First Amendment does not provide a general defense to the anti-trust laws," she told the Senate Judiciary Committee. "In general, the anti-trust laws are the anti-trust laws and they apply to all companies."
When Franken asked more explicitly about how net neutrality might be legally defended, Kagan declined to take a stance on what she characterized as a policy issue. But she generally supported Franken's description that free-speech rights promote media diversity.
"One of the purposes of the First Amendment is to ensure a public sphere in which all kinds of thoughts and views can be expressed and we can learn from all of them," she said.
Franken reinforced the strong stance he took earlier this year in opposition to the merger.
"Comcast is already extremely powerful," he said. "It's the nation's largest cable operator and also the largest home Internet service provider. If it owned both the pipes and the programming it would have the ultimate ability to keep others from publishing."
He warned that other major Internet service providers may decide to follow the Comcast into the content arena.
"I worry that if Comcast and NBC merge, AT&T and Verizon are going to decide that they have to buy ABC or CBS and that will mean there will be less independent programming, fewer voices, and a smaller marketplace of ideas," he said.
Franken broached net neutrality during Justice Sonia Sotomayor's confirmation hearings last year as well.