First Amendment 2.0 Ratified by 3 FCC Commissioners? The Principle-less-ness of Net Neutrality

December 12, 2009

The foundation of American Democracy for over 200 years has been respect for the U.S. Constitution and the rule of law. The advent of the mainstream Internet in the 1990’s created a new and exceptional medium for free expression, much as telephone, radio, movies, TV, faxes, dial-up, email, texting, etc. have created new technological mediums for free expression.

  • The argument that the Government must regulate broadband providers in order to preserve 200 year-old First Amendment rights is disingenuous, duplicitous, and dystopian.

Current justifications for new net neutrality regulations to implement a “21st Century First Amendment” via three votes by un-elected FCC commissioners as net neutrality proponents like Marvin Ammori advocate, could not be a more radical assault on America’s real institutions of democracy.

If net neutrality supporters really cared about advancing American Constitutional Democracy, they would respect that the U.S. Constitution is designed to prevent Government tyranny of the people by creating powerful institutional checks and balances, a Bill of Rights, and definitive processes to change laws or amend the Constitution.

  • The same Net neutrality proponents who urged Congress for the last four years to quickly pass net neutrality legislation have conveniently changed their tune and are saying legislation is no longer required because they believe they have 3 FCC votes.
    • An important reminder to the FCC: Amending the Constitution to make it more technologically current would still require more than three votes by un-elected officials at an independent agency.
    • Per Article V of the U.S. Constitution, ratification of a new amendment takes a two-thirds vote of both the House and Senate and an affirmative vote of three quarters of the states.
  • It is hard to get more radical than advocating for the bypass of core Constitutional processes including Congress’s sole Constitutional power to legislate.

In sum, the specious argument that net neutrality is First Amendment 2.0 will not stand after it passes through the America’s Constitutional processes.

  • Three un-elected FCC commissioners may vote any way they want.
  • However, for their decisions to enjoy the legitimacy of our Democracy and Constitutional processes, their decisions ultimately must be accountable to the checks and balances of the Judiciary and Congress.

Regulations, like elections, have consequences.

 
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