Cable Industry Confused: It's Not Their First Amendment, But Ours

The cable and phone industry keep making the offensive argument that the First Amendment belongs to them, not you--and that the First Amendment empowers them to stifle your online speech just so they can make more money.

This Wednesday, the cable industry's head lobbyist gave a speech claiming that Net Neutrality would violate the First Amendment. According to the NCTA’s Kyle McSlarrow, cable companies have free speech rights, while Americans (like you) don't have rights to access or upload content on the Internet.

And Net Neutrality -- a rule that would protect Internet users from cable and phone efforts to censor you online or to discriminate against your favorite Web sites -- would abridge the speech rights of phone and cable companies.

Just repeating his argument shows how silly -- and offensive -- it is. McSlarrow specifically said that cable companies would "speak" by offering priority-treatment to some Web sites that pay cable companies more, at the expense of other sites that don't pay them. Really. (It's amazing what a 2-million-dollar lobbying salary will do to a man's reason.)

He also said two things that directly contradicted one another (nothing new for phone and cable reps). He said (1) Net Neutrality is unnecessary because cable companies would not affect Internet traffic, let alone block it; and (2) Net Neutrality is "forced speech," because it forces cable companies to carry speech they would, in fact, otherwise block or affect. Which is it? Will cable companies block speech (once again) or will they not?

And, in fact, his industry lost this same argument about the First Amendment in a major FCC decision just last year, rendered against his largest member company -- Comcast -- under a Republican Chairman, with a bipartisan vote.

But I want to focus on a particular insult to all Americans whose ancestors are human beings, not cable corporations. He said, "There is plenty of case law about instances of speech compelled by the government – 'forced speech' -- that suggests such rules should be scrutinized closely."

Let me tell you about this Supreme Court case law. It applies generally to humans, not cable corporations. You can force the speech of corporations, not humans, regularly. We "force" corporations to "speak" and disclose "material information" to investors. We can force corporations to disclose the side effects of prescription drugs or the trans fats in potato chips. We can force them to print Surgeon General's warnings.

On top of that, we can "force" cable companies to carry local broadcast stations. The Supreme Court said so in a case called Turner, which rejected the cable industry's same, repeated "forced speech" arguments. But this week, McSlarrow seems to forget that his industry lost Turner, and he is pinning his Net-Neutrality hopes on a few sentences in that case. Good luck with that.

But, in turning to the forced speech cases the cable industry didn't lose, you see how offensive McSlarrow's argument really is. The leading forced speech decision in the Supreme Court involves a person, not a cable corporation. That person was a grade school student -- a Jehovah's Witness.

During World War II, Jehovah's Witnesses refused to salute the flag for religious reasons. They thought the pledge was Nazi-like, an arm raised akin to the Third Reich's salute. And Witnesses were familiar with the Nazis. Nazis banned their movement in 1933, killed one-third of them, and persecuted up to 97% of them in Germany. (The story is in this book.)

But Americans misinterpreted the Witnesses' motives, and thought they were unpatriotic, if not pro-Hitler. In West Virginia, 500-some taunting citizens forced some Witnesses to drink castor oil and roped them up and then paraded them through town. In Wyoming, five Witnesses (two women) were beaten by a mob. In an Arkansas, two Witnesses were shot, four hospitalized after being beaten with pipes and screwdrivers. In Illinois, vigilantes pulled a Witness from his car, draped an American flag over his hood, and (when he refused to salute the flag) slammed his head into the hood for nearly half an hour while the police chief looked on.

During all this, West Virginia passed a law aimed at Witnesses, requiring all students to pledge allegiance to the flag, under penalty of expulsion for the child, fines and jail time for the parents. The Witnesses offered another pledge, declaring "allegiance and obedience to all the laws of the United States that are consistent with God's law, as set forth in the Bible" and "respect" for the flag, "a symbol of freedom and justice to all." But that wasn't good enough for the state of West Virginia.

The Supreme Court struck down this law, for forcing the speech of children and parents, against their personal convictions. Other cases follow this logic.

The cable companies are trivializing the judicial freedom protected in those cases.

They're not school kids. They're huge, billion-dollar, profit-maximizing companies whose lobbyists dominate Washington, DC.

They don't want to express their deep personal or religious convictions. They want to block and control speech. They want to determine winners and losers on the Internet. They want to break the Internet. They want to break your Internet, not theirs. And, to do so, they're raising a First Amendment argument based on protections for forced-speech and freedom of conscience.

Their argument is just plain offensive.