Likelihood of Success

Ron Coleman’s pretty good blog

Find that right

Posted by Ron Coleman on August 29, 2007

Concurring Opinions, via Instapundit, writes in favor of Net Neutrality — a key issue, and one that affects the ability of everyone in the world to get his thoughts on the Internet, as well as for everyone else to read them. But, of course, someone has to pay for everything. Some of the ones paying are inclined not to provide quite so much free-riding on the system as is available to you and me right now. As Frank Pasquale notes, considering Lawrence Tribe’s recent pronouncements on the subject:

Many First Amendment absolutists [such as Tribe] would like to see it eviscerate the public’s rights to privacy and cultural self-determination.

Now, I get the point: Tribe says, if the First Amendment says that, say, a parade organizer has the right to decide who marches in his parade, why doesn’t a broadband owner have a right to govern which electrons march in his? The analogy is pretty lame; if a parade is indeed protected speech, a copper wire certainly isn’t. (In other words it has no message of its own; it is only a medium.) But that sentence was troubling. I wrote in the comments:

Notwithstanding the characterization (“eviscerate”), this sentence names three competing “rights”: Free speech, privacy and cultural self-determination. For 20 points, how many of those rights are in the Constitution?

I count one. Now, I love Net Neutrality. And I am not an expert on the competing constitutional interests at stake — which, let’s face it, are already far-fetched analogies to anything the framers of the Constitution could ever have contemplated regarding free speech. But we’ll have to do a lot better preserving it than positing either a right to privacy, itself only the product of those famous emanations, or “cultural self-determination,” as worthy of offsetting what may or may not be legitimate First Amendment rights.

UPDATE:    A lot of this going around.


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