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Competition, not regulation, will protect free speech on the internet
Recent highly public moves by Facebook and Google to deactivate users or to otherwise censor or handicap certain speech the companies deem “hate speech” or “fake news” has reopened one of the oddest but most popular arguments for net neutrality — that somehow categorizing internet service providers (ISPs) as public utilities is necessary to protect citizens’ First Amendment rights.
The argument is that if Verizon, Comcast, or AT&T are not forced to act as “dumb pipes,” these companies will foreclose speech that they find distasteful. Even more convoluted is the assertion that if other companies (such as Netflix or Amazon) pay ISPs for faster service by private agreement, faster service in and of itself is a threat to free speech as it “prefers” some speech over other speech — even if anyone has the same opportunity to buy the prioritized service and some do not even need it. These are odd arguments for various reasons, not least of which is that the First Amendment only limits Congress, not private actors (such as ISPs), from abridging speech. But most strikingly, net neutrality advocates’ focus on ISPs is odd as these companies do act as content conduits, not content platforms, unlike edge providers such as Google, Facebook, Amazon, and Twitter.
Consider the intellectual jiujitsu that net neutrality proponents perform to claim that ISPs are enemies of the First Amendment (or more accurately free speech) and platform and application companies that block content are not. As my AEI colleague Daniel Lyons noted:
By leaning on the First Amendment, the progressive left suggests that net neutrality is about suppression of speech. Under this framework, the big threat is broadband providers inhibiting access to controversial websites (such as discussions of the Black Lives Matter movement) or sites with which they disagree (such as the hypothetical www.comcastsucks.com). But such actions are unlikely. The FCC cited no evidence of a broadband provider engaging in such behavior during the two decades before the net neutrality rules went into effect. And any company foolish enough to take such action would be pilloried in the press.
I agree with Lyon’s analysis except for the last sentence — at the moment, there is little outcry or pillorying from the press about Facebook’s, Google’s, and Twitter’s moves to overtly limit third-party content. Again, private companies such as Google, Twitter, and Facebook have the right to do what they will (within certain legal limits) with their own property. But it is ironic that the progressive left attacked non-content platforms on free speech grounds but are relatively silent when favored companies such as Google and Facebook actually act on content. That silence puts the lie to the argument that free speech was ever a true motivator to the net neutrality argument.
Indeed, past net neutrality arguments that claim a lack of competition among ISPs necessitates regulation to protect speech are far more persuasive when applied to large content platforms. For example, many net neutrality arguments are based on the false premise that ISPs form a duopoly — cable in particular is characterized as a monolithic, powerful competitor with a choke hold on content. But this argument ignores competition, especially in mobile telecommunications, where Verizon, T-Mobile, AT&T, and Sprint roughly divide the market. Contrast that to Google and Facebook, each of which has dominant, international market shares over search and content platforms — arguably, these platforms for speech are the perfect place to put a “dumb pipe” if free speech is really on the line.
To be fair, a small group of vocal net neutrality proponents decry Google’s and Facebook’s “monopolies” and ask for the extension of public utility regulation or for antitrust enforcement actions to be taken against these companies in addition to ISPs. Although more intellectually consistent than silence, this is a dangerous idea (a subject for another blog). This argument also reveals that Federal Communications Commission Chairman Ajit Pai was indeed prescient (if unappreciated at the time) in identifying the underlying motives of some highly vocal net neutrality advocates — nothing short of full government control or ownership of the internet ecosystem.
Chairman Pai has called for restoring internet freedom for a reason. We had economic data before the Open Internet Order and even more now that show that ISPs compete and that regulation severely dampens investment. Even high market shares in highly dynamic industries should not be overplayed. From his 2012 article on whether Google search should be declared a public utility, Mark Jamison wrote, “Even if there were no rivals [and there are], [Google’s] monopoly status would be fleeting because Internet-based markets are constantly evolving so that today’s innovative service is tomorrow’s relic.” Remember in the late 1990s, when Yahoo was the winner in internet search?
The delistings and self-appointed censorship role of these platforms are disconcerting. But the answer is not to incite a government takeover of the internet. Government regulation has not helped consumers of ISPs, and it won’t help consumers in the marketplace of ideas. It is time to restore internet freedom to help the internet grow and competition flourish. This way, consumers have more, not fewer, choices of where and how to express their ideas.