Muni Broadband Flirtation With 'Perverse' Socialism, First Amendment Threat, O'Rielly Says
Localities building municipal broadband networks are “flirting with a perverse form of socialism” and pose a “serious” threat to the First Amendment, said FCC Commissioner Mike O’Rielly in a 2,200-word blog post Thursday that responded to “hysterical outrage” from critics of remarks he made before the Media Institute. “I could retreat in the face of my critics’ attacks and misinformation, or I could continue to defend the First Amendment,” O’Rielly said. He previously wrote an equally long post against criticisms of FCC handling of the since-canceled Sinclair/Tribune deal (see 1805180072).
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Allies of local governments selling web access criticized the post, including Next Century Cities. Those concerned about government overreach in this area said there are many fears about free speech being stifled. The FCC declined to comment, and the office of Commissioner Jessica Rosenworcel had no comment. Some other groups including NATOA had no comment.
“Commissioner O’Rielly acts like this offends him in some way,” said Institute for Local Self-Reliance Director-Community Broadband Networks Christopher Mitchell. He and Elin Swanson Katz, of Connecticut’s Office of Consumer Counsel, said the blog seemed “defensive.” Some also described the Sinclair blog similarly. The tone was “unusual,” Mitchell said. It's hard to argue that muni broadband networks are failures, so opponents like O’Rielly must try to characterize them as threats, Mitchell said. O’Rielly’s earlier remarks to the Media Institute were “like a dog whistle” for muni broadband opponents, Katz said. O'Rielly aides didn't comment.
O’Rielly pointed to muni broadband networks in Chattanooga, Tennessee, and Concord, Massachusetts, that have restrictions on harassing or abusive speech as restricting speech based on content. Such restrictions could lead to viewpoint or ideological discrimination, O’Rielly said, adding that governments have more incentive than private companies to suppress free speech. “Governments have repressed the free exchange of ideas and information, often to serve the interests of domineering political leaders in undemocratic nations,” O’Rielly said. “Only by preserving the private sector’s preeminent role in offering communications services and diligently defending the First Amendment to the U.S. Constitution can we ensure that such circumstances won’t develop in America.”
There are privacy plus free-speech concerns when governments get into the broadband business, said a lawyer and economics professor who has studied one such provider in Concord. Wichita State University's Theodore Bolema, whose paper was cited in O'Rielly's post, told us he worries about information sharing within a municipality, say between the provider and the local police department. Terms of service can let the public ISP "reserve the right to censor," he said, "to restrict certain types of speech" like something deemed hateful. "There is quite a bit of First Amendment law saying that is overly broad," said Bolema, also affiliated with the Free State Foundation. He's glad the commissioner is "taking an interest in the issue."
O’Rielly is conflating local governments with national governments, said Mitchell. “I’m probably with Commissioner O’Rielly in not wanting the federal government to control my broadband network, but I trust my local government." Local citizens have more of an ability to influence the behavior of their local government than they do to influence a large, national ISP, Mitchell said. Muni broadband networks can’t broadly restrict speech because unlike ISPs, they are state actors and must abide by the First Amendment, O’Rielly said. “An act of censorship may be permissible if performed by a private actor but prohibited if executed by the state.”
Broadband has become an “essential service” like water or electricity, and it makes sense that governments would step in to provide it in places where there’s scarcity, said Katz.
Though muni broadband supporters said there’s no evidence such arrangements have prevented free speech, O’Rielly said Thursday that none is required. “A state action or law can violate the First Amendment as applied or on its face,” he said. That flies in the face of O’Rielly’s defense elsewhere in the post of not applying Communications Act Title II regulation to ISPs, Mitchell said. The threat to speech online “posed by private ISPs -- as opposed to other technological platforms -- has not been truly shown to be more than hypothetical,” he said.
“My critics somehow want us to believe that restrictions on speech are less dangerous when the government owns and operates the network,” O’Rielly said. “Nothing could be further from the truth, and, in taking such a position, some of my critics seem to reveal their disingenuousness in claiming to support free speech online.”