2. Your Right to Freedom of the Press. **
The First Amendment provides that "Congress shall make no law abridging the freedom of the press."
Commentator A,J, Liebling quipped that "freedom of the press belongs only to those who own one." That is no longer true. Bill Gates, Steve Jobs, and their contemporaries have placed the means to publish news and opinion o every desktop or in every hand.
It will be up to the courts to determine whether the rights, responsibilities, and regulation of traditional journalists which have been approved by the courts and legislatures over the past 226 years in America will be extended to "citizen journalists" who rely on the new technologies.
Although the Supreme Court has not ruled directly on the question of bloggers and non-traditional journalists, the Ninth Circuit Court of Appeals in Obsidian Finance Group v. Cox in 2014 that bloggers enjoy the same protections from libel claims as traditional newspapers and periodicals. The "protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story."
It is still unclear if non-traditional journalists enjoy such protections as shield laws and copyright infringement limits.
QUESTION 1: How did John Peter Zenger of New York help to prompt James Madison to include freedom of the press in the Bill of Rights?
Zenger printed a newspaper in New York City which published articles by unidentified authors that were highly critical of Royal Governor William Cosby. It accused Cosby of corruption, collusion with the French enemy, and idiocy. In 1733, Zenger was jailed for libel, which ten meant publishing criticism (true or false) of the government without identifying the authors.
Governor Cosby appointed a first jury, which was packed with Cosby's employees. But Zenger's wife continued to print the newspaper with articles stirring pubic sentiment against the corrupt jury. The judge was forced by public disruptions to appoint a second, impartial jury.
At the 1735 trial, the judge ordered the jury to convict Zenger if they believed he printed the anonymous articles, which he had admitted. But the jury heeded the arguments by Zenger's lawyer that the Crown must prove that Zenger's charges of corruption were false. He closed by stating "This is not the cause of one poor printer. It is the cause of liberty." The second jury took ten minutes to acquit Zenger.
QUESTION 2: How did Benjamin Franklin and his pamphlets help to prompt James Madison to include freedom of the press in the Bill of Rights.
In 1723, ten years before Zenger was jailed for publishing "libel against the government" in New York, Franklin's brother James was jailed on "contempt" charges for criticizing government. Franklin took over his brother's newspaper.
In pamphlets and other newspapers over the next 50 years, Franklin criticized such British taxes on the colonies as the Molasses Act and the Stamp Act.
In 1776, Franklin presided over the Second Continental Congress and the Constitutional Convention in Philadelphia. He served on the committee of five which drafted the Declaration of Independence.
Although raised as a loyalist subject, Franklin's pamphlets, newspapers, and other writings showed that he evolved into a crucial advocate of individual liberty, free speech, and the free press.
QUESTION 3: How did Samuel Adams and his pamphlets help to prompt James Madison to include freedom of the press in the Bill of Rights?
Benjamin Franklin wrote several introductions to pamphlets written and published by Boston firebrand Samuel Adams. In 1772, Adams wrote "The Rights of the Colonists" and the independence-leaning Constitution of Massachusetts.
In 1773, Adams organized the Boston Tea Party which protested the imposition of a tax on tea imports to Boston, New York, Philadelphia, and Charleston.
By 1774, Adams had grown into full support of a battle for independence, writing "The country shall be independent, and we will be satisfied with nothing short of it."
Adams organized "Committees of Correspondence" which circulated and published demands for liberty throughout the colonies.
QUESTION 4: How did British pamphleteer Thomas Paine help to prompt James Madison to include freedom of the press in the Bill of Rights?
Benjamin Franklin persuaded Paine to move to Philadelphia in 1774, where Paine began to publish a pro-liberty newspaper.
In 1776, Paine published the pamphlet Common Sense, which was read in every hamlet in the colonies. John Adams later wrote that "without the pen of the author of Common Sense, the sword of Washington would have been raised in vain."
From 1776 to 1783, Paine published a series of pamphlets title The American Crisis which reported on the American Revolution and spurred spirited resistance.
Paine later moved to France and supported the French Revolution. But he fell afoul of Robespierre and was jailed for treason. James Madison negotiated Paine's release and return to America. Only six people attended Paine's funeral in 1809, because Paine had expanded his attack on organized authority to include resistance to Christianity.
QUESTION 5: Does freedom of the press apply only to federal restrictions or regulations?
The Supreme Court held in Near v. Minnesota in 1931 that the federal guarantee of a free press extended to local government through the Fourteenth Amendment. The Supreme Court struck down a Minnesota law targeting publishers of malicious or scandalous newspapers. James Near published a small neighborhood paper that was sharply critical of what he perceived as ties between the city government and organized crime involved in gambling.
The Hennepin County Attorney, rabid populist Floyd B. Olsen, prosecuted Near and his partner Howard Guilford when they printed a story that Floyd's successful campaign for Governor had been funded by the gambling syndicate. Shortly after Olson's election as Governor, the gangsters killed Guilford with a shotgun blast to his head at the wheel of his car. Shortly thereafter, another Minneapolis journalist, Walter Liggett was mowed down with a Thompson submachine gun by a gangster who was linked to Governor Olson and Minneapolis Mayor Hubert H. Humphrey. Liggett was killed in his driveway in front of his wife and daughter, but the gangster was acquitted. A third Minneapolis journalist, Arthur Kasherman, was shot to death after criticizing city officials, and his death was credited with the election of Mayor Hubert H. Humphrey.
The 5-4ndecision in Near v. Minnesota was crucial in the "switch in time that saved nine" in blocking President Franklin Roosevelt's threat to "pack the Supreme Court" by adding liberal justices to the nine-member Court and save the New Deal from court reversals. Conservatives William Howard Taft and Edward Sanford died within five hours of each other. The four remaining conservative Justices opposed Near's extension of the freedom of the press to state and local laws, but the replacement of Taft and Sanford by Charles Evans Hughes and Owen Robert persuaded Roosevelt to end consideration of the Court-packing plan.
QUESTION 6: What restrictions and regulations may be placed on freedom of the press and traditional journalists?
DEFAMATION OF PRIVATE PERSONS: The courts have upheld lawsuits by private persons who can show that a statement spoken or published about them is: false; injurious; and unprivileged.
Private people who are defamed have more protection than public figures because freedom of speech is not as important when the statements do not involve an issue of public interest, A private person who is defamed can prevail without having to prove that the defamer acted with actual malice.
The Supreme Court ruled in Dun & Bradstreet v. Greenmoss Builders in 1985 that a private plaintiff could recover if a credit reporting agency reported that the plaintiff had filed for bankruptcy when it had not. The fact that the defendant was not a media member appeared to temper the Court's holding for the plaintiff.'
The Supreme Court ruled in Hutchinson v. Proxmire in 1979 that a behavioral scientist engaged in animal research studies did no become a public figure required to show actual malice= merely because he applied for federal grants and published in professional journals.
The Supreme Court held in Wolston v. Reader's Digest Association in 1979 that a person who engages in criminal misconduct does not automatically become a public figure even when the defamatory statements relate solely to his conviction.
The Supreme Court held in TIME v. Firestone in 1976 that marriage to a very wealthy person and divorcing such a person does not amount to voluntarily entering the public arena even though press conferences were held, because going to court was the only way she could dissolve her marriage.
DEFAMATION OF PUBLIC OFFICIALS AND FIGURES: In New York Times v. Sullivan in 1964, the Supreme Court held that public officials could only sue for libel if they proved that a false statement was published with "actual malice," where the publisher either knew it was not true or didn't care whether it was true or not and was reckless with the truth.
In the Sullivan case, the newspaper published an ad about police conduct involving protestors in Alabama involved in the civil rights movement. The ad contained several false statements. An official in charge of local police alleged that he had been defamed because people associated him with the false statements about police action. The Supreme Court held that his libel suit could nor stand because he had not proved actual malice on the part of the publisher.
The Supreme Court in Gertz v. Robert Welch, Inc. in 1974 gave some relief to a private person in a defamation case, but held that such a person in a defamation case might have to prove some measure of actual malice in order to receive automatic punitive damages.
Gertz was a lawyer hired by the family of a murdered youth to sue a Chicago police officer who had been convicted for the murder. Robert Welch, Inc. was the corporate name of the radical John Birch Society which published a series of articles accusing Gertz of supporting a Communist conspiracy to replace local police departments with a totalitarian national police force.
The Supreme Court held that Gertz was a private person even though he had been a public defender. However, the Supreme Court held that so long as they do not impose liability without fault, states are free to establish their own standards of liability for defamatory statements made about private individuals. However, the Court also ruled that if the state standard is lower than actual malice, the standard applying to public figures, then only actual damages may be awarded.
OBSCENITY: The same standards and restrictions on obscenity and child pornography that have been applied to free speech have been applied to freedom of the press.
The Supreme Court held in Roth v. United States in 1957 that obscenity is unique in being the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it is harmful to individuals. According to the Court, there is evidence that, at the time of the adoption of the First Amendment, obscenity “was outside the protection intended for speech and press.” Consequently, obscenity may be banned simply because a legislature concludes that banning it protects “the social interest in order and morality.” No actual harm, let alone compelling governmental interest, need be shown in order to ban it.
CHILD PORNOGRAPHY: The Supreme Court in United States v. 12 200-Ft. Reels of Film in 1973bheld that child pornography is material that visually depicts sexual conduct by children. It is unprotected by the First Amendment even when it is not obscene; that is, child pornography need not meet the Miller test to be banned. Because of the legislative interest in destroying the market for the exploitative use of children, there is no constitutional right to possess child pornography even in the privacy of one’s own home
FIGHTING WORDS: So-called “fighting words” also lay beyond the pale of First Amendment protection in either the free speech or free press realms.
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QUESTION 7: What are the crucial cases relating to the ban on "prior restraints" on journalists for the content of their reporting?
1. The Supreme Court held in Near v. Minnesota in 1931 that the First Amendment guarantee of press freedom also applied to state and local restrictions on future publication of reportorial content because the First Amendment protection of press freedom was incorporated on local government by the Due Process Clause of the Fourteenth Amendment.
The Near Court also held that no prior restraint of the content of news by the government is allowed unless it reveals crucial military information, contains obscenity, or may directly incite "acts of violence."
2. The Supreme Court held in Lovell v. City of Griffin in 1938 that a city could not require a license or sanction before the distribution of a tract. The statute was challenged by a Jehovah's Witness. Alma Lowell was sentenced to 50 days in jail for refusing to pay the $50 fine for violating the Georgia ordinance by distributing tracts without a license.
The Lowell Court held that the ordinance was overbroad because it restricted the distribution of materials that were not obscene, offensive to public morals, or advocating unlawful conduct.
3. The Supreme Court held in Hannagan v. Esquire in 1946 that a single official could exercise unilateral national censorship against a publication by denting a second-class postage rate that regularly published a Vargas Girl feature and other drawings of scantily-clad female figures.
The Esquire Court held that " Such a power is so abhorrent to our traditions that a purpose to grant it should not be easily inferred. To withdraw the second-class rate from this publication today because its contents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social or economic views seemed harmful to another official… Congress has left the Postmaster General with no power to prescribe standards for the literature or the art which a mailable periodical disseminates."
4. The Supreme Court held in New York Times v. United States in 1971 that the government bore a heavy burden to justify a prior restraint against the publication of government secrets. In 1967, Defense Secretary Robert McNamara authorized the creation of a "massive top secret" history of U.S. involvement in Vietnam. In 1971, Daniel Ellsburg who had authored much of the 48=volume report, leaked 7,000 pages to the newspaper. The Nixon Administration sought to bar the publication of the study's findings.
The New York Times Court allowed the publication. It held: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity”. The purpose of this statement was to make the presence of the inherent conflict between the Government’s efforts and the First Amendment clear. The decision then stated that the government “thus carries a heavy burden of showing justification for the imposition of such a restraint”. This reinforced the idea that it was the Nixon Administration's responsibility to show sufficient evidence that the newspapers’ actions would cause a “grave and irreparable” danger.
5. The Supreme Court held in Miami Herald Publishing Co. v. Tornillo in 1974 that a Florida state law requiring newspapers to allow equal space in their newspapers to political candidates in the case of a political editorial or endorsement content was unconstitutional.
The court held that while the statute does not "prevent [newspapers] from saying anything [they] wish" it "exacts a penalty on the basis of the content." Because newspapers are economically finite enterprises, "editors may conclude that the safe course is to avoid controversy," thereby chilling speech. Furthermore, the Court held the exercise of editorial judgement is a protected First Amendment activity. In effect, this ruling reaffirmed the constitutional principle of freedom of the press (detailed in the First Amendment) and prevented state governments from controlling the content of the press.
6. .The Supeme Court in Nebraska Press Assn. v. Stuart in 1976 struck down a Nebraska trial judge's gag order limiting media coverage of a murder trial. Police had given reporter's a very accurate description of the killer and later informed them of Erwin Charles Simants' detailed confessions to sex crimes and the murder of six members of the Kellie family, the trial judge ordered the media to limit its description of the evidence.
The Stuart Court wrote, "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment Rights".[3] The court ruled this was particularly at issue when dealing with "communication of news and commentary on current events".[6] According to the ruling, it was inappropriate to bar media reporting on a criminal case prior to the trial itself, except in matters where a "clear and present danger" existed that would impede the process of a fair trial.[3] The court characterized the press as "the handmaiden of effective judicial administration, especially in the criminal" process.
7. The Supreme Court in Landmark Communications v. Virginia in 1976 struck down a Virginia statute which led to the conviction of a publisher for revealing that a judge was under secret investigation by a state panel before it made a probable cause finding.
Although the Landmark Court rejected Landmark's claim that truth was an absolute defense, it held that the Commonwealth's interest in blocking premature disclosure of an investigation was outweighed. In its conclusion, the Court wrote: "the [clear and present danger] test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil as well as its likelihood against the need for free and unfettered expression."
8. The Supreme Court held in Tory v. Cochran in 2005 that a "prior restraint" against pickets and written statements by a disgruntled former client against his previous lawyer was overbroad in light of the attorney's death seven days after the Supreme Court's hearing in the case.
The case involved famed O/J/ Simpson defense counsel Johnny Cochran. Twenty years after Cochran withdrew as Tory's counsel in a civil rights case, Tory began to picket and write signs accusing Cochran of accepting bribes and being a thief. In Cochran's defamation action, the trial judge ordered Tory to never again mention or write Cochran's name. The Court ruled 7–2 that in light of Cochran's death, the injunction limiting the demonstrations of Ulysses Tory "amounts to an overly broad prior restraint upon speech"
9. Journalists should also be wary of special taxes and restrictions on their businesses. A key case was from Minnesota. In 1983, the Supreme Court struck down in Star Tribune v. Revenue Commissioner a special state tax on any publisher's use of more than $100,000 per year of newsprint and ink products.
QUESTION 8: Are there special limits on press freedom in the form of restrictions, regulations, licensing or taxation of radio or television?
1. The first federal regulation of electronic broadcasting had nothing to do with First Amendment concerns. The Wireless Ship Act of 1910 required that all ships travelling between the United States and other nations must carry and monitor a rescue radio.
2. In response to the sinking of the R.M.S. Titanic and the loss of hundreds of lives, Congress passed the Radio Act of 1912. It called for licensing all transmitting apparatus for interstate or foreign commerce by the Secretary of Commerce, required that each station operator be licensed and that the government prescribe regulations to minimize interference. Other sections of the act provided for licensing of experimental stations, regulation over the type of modulation, prohibition against divulging content of private messages, and for giving preference to distress signals. It did not mention broadcasting.
7. In addition, extreme interference problems encountered with the breakdown of the 1912 Act suggested that a real scarcity of available channels existed. This complicated the task of the commission to devise a permanent allocation scheme that would suit all political and business constituents. Since the known radio spectrum and limited engineering capabilities could not afford all who wanted to speak an opportunity to do so, the radio commission was empowered to impose rules and regulations limiting the number of entities actually using the airwaves. Legislators provided the commission with broad discretionary powers subject to adjudication by the federal courts.
8. Public feuding between local legislators who wanted stronger local stations and radio manufacturers who wanted stronger national networks led to stagnation by the Federal Radio Commission during its seven-year tenure under the 1927 Act.
9. This led to the passage of the Communications Act of 1934 which established a permanent commission to oversee and regulate the broadcasting and telecommunications industries. In creating the Federal Communications Commission, Congress gave the permanent agency the same broad powers that were given to the FCC. These powers were extended to include wired communications services that had been under the jurisdiction of the Interstate Commerce Commission.
10. By the end of the 1930's, the FCC was trying to mitigate the power that NBC held over CBS and the smaller Mutual network, and the power that manufacturers and other network owners exerted over local licensees. The FCC was seeking to impose more localized service standards on licensees than the networks wanted to serve.
11. Facing a challenge to the FCC by the most powerful network, the Supreme Court acted in NBC v. United States in 1943, The Supreme Court first upheld the constitutionality of the Communications Act of 1934 and recognized broad regulatory powers for the FCC. A congressional backlash led to the resignation or non-reappointment of several FCC commissioners.
12. The progressive reformers also tried to limit political commentary. They proposed the Mayflower Doctrine in 1945 which would have prohibited political editorializing, expressing partisan opinion rather than news. In 1949, the rule was revoked and replaced with the Fairness Doctrine allowing radio stations to choose their own programming, but requiring a reasonable amount of air time to be devoted to public service programming of interest to the community and be designed to hear opposing views on public issues.
13. The residual progressive FCC staffers also studied the radio industry and in 1946 issued the FCC "Blue Book" of proposed regulations which would require local licensees to feature: 1) more local programming; 2) more programming on public topics; 3) sustained quality of all programming; and 4) elimination of advertising abuses. This effort was killed by opposition by local licensees, owners of chains of stations, broadcast networks, and local legislators who tied the Blue Book to allegations of a Communist conspiracy. This dispute ended when William Randolph Hearst successfully combated the denial of a renewed license to his WBAL radio station in Baltimore in 1951.
14. The Supreme Court in Red Lion Broadcasting v. FCC in 1969 upheld the constitutionality of the Fairness Doctrine. After the 1964 election, a radio station aired a 15-minute attack on the author of a book which had criticized presidential candidate Barry M. Goldwater. he station denied equal time for rebuttal by the author. In 1987, President Ronald Reagan vetoes a bill that would have turned the Fairness Doctrine into federal law. In 2011,the FCC revoked the Fairness Doctrine.
15. The growth of television revenues, the decline of AM radio revenues, and the decline of power of radio networks in the 1950s led to decreased FCC regulatory efforts in that decade.
16. But from 1960 to 1980, the FCC slowly increased the regulatory burden on broadcasters with record-keeping requirements, rules against cross-ownership of broadcasters and ownership by local newspapers, political access, and obscene content or words led to a push for de-regulation.
17. The growth of regulation from 1940 to 1980, when combined with massive changes in the industry, competition, and changes in audience loyalties, led to massive de-regulation after 1980 under president Reagan and his FCC Commissioner Mark Fowler. The statutory adoption of the Fairness doctrine was vetoed in 1987. Under President Obama, the Fairness Doctrine was repealed completely as a regulation in 2011.
18. However, the Supreme Court held in CBS v. FCC in 1981 that the FCC may require broadcasters to sell reasonable amounts of time to legally qualified candidates for federal office.
19. The Supreme Court upheld in 1978 in FCC v. Pacifica Foundation the FCC's ban on the broadcast of any of "the seven deadly words" or of the broadcast of indecent monologues on the grounds that broadcasts could reach children and that broadcasts invaded individuals' homes. The invention of V-chip technology has eroded those grounds for this censorship.
20. With nearly forty years of increasing de-regulation under both Republican and Democrat Presidents, as well as with the rapid growth of cable broadcasts, podcasts, and other technologies, the regulation of broadcasts has shrunken rapidly and vastly. The renewal of broadcasters' licenses has been called a post-card and rubber stamp operation.
QUESTION 9: What federal, state, and local regulations are used for cable television?
The FCC has imposed federal limits on cable broadcasters with respect to: 1) the amount of advertising during children's programming; 2) obscenity with standards looser than those for over-the-air broadcasters; 3) maximum fees which cities may charge to cable providers; 4) billing practices; and 5) response times for customer requests and complaints.
At the state level, Minnesota only bars cities from granting exclusive franchises to a single franchisee and regulates municipal rules on franchise contracts and access to customers.
Municipal regulation in Minnesota is allowed for capping the price for basic cable service, requiring PEG channels for public, educational, and government programs, and requiring providers to provide certain levels of service and programming.
QUESTION 10: What restrictions on "press freedom" may be imposed on the internet, podcasts, blogs, and other emerging technologies?
Technology developments in communications may be likened to technology developments in weapons systems.
With weapons systems, new technology may give temporary advantages to offensive goals (long-bows, submarines, inter-continental missiles, or stealth bombers) or to defensive goals (armor suits, sonar, anti-ballistic missiles, or satellites). You can envision new weapons technology, but you can seldom predict them.
With communications, new technology may give temporary advantages to providers (printing presses, typewriters, telephones, crystal sets. radios, televisions, Univac, desk tops, cell phones, lap tops, and surfaces) or to consumers (print shops, correspondence committees, kit-builders, samizdats, copier machines, faxes, website builders, and the "dumb pipe" internet).
In either race - - between offensive and defensive weapons systems, or between providers and consumers of communications - - the government is always running to catch up. In communications, the government is running to catch up with censorship, restrictions, limitations, court orders, injunctions, statutes, and regulations.
Along with the government, there will be anticompetitive forces applied by the owners of status quo providers. But in the end, the cattle barons will lose to the shepherds, and the shepherds will lose to thhe farmers, and the farmers will lose to the factory farmers. Better mousetraps will be built.
But communications are the lifeblood of freedom. And freedom is like water. It is always finding new ways to work around or through any dam, levee, foundation, or channel. Any effort at censorship, regulation, or limitation will eventually be defeated by new communications technology.
The question will be how long you will have to wait for renewed freedom to blossom.
NET NEUTRALITYL In 2003, Columbia law professor Tim Wu outlined a theory called "net neutrality" which would keep internet providers from closing the "open range" of an unrestricted internet available to all users.
Free-range advocates feared blocking, where providers would deny access to internet services that were absorbing too much bandwidth for consumers. The French provider Orange had found in 2013 that over half of its bandwidth was being absorbed by YouTube and other Google sites, so it blocked that access until Google paid a special fee to Orange.
Free-range advocates feared throttling, where providers would secretly slow uploads of applications which were absorbing too much bandwidth. In 2011, the FCC ordered Comcast to stop throttling consumers' ready access to BitTorrent.
Free-range advocates feared limousine favoritism, where providers would charge more for fast access to applications which absorbed too much bandwidth.
Free-range advocates fear data constipation, where providers charge more to certain applications to create advantages for their own search engines, Internet phone services, and streaming video services.
Free-range advocates fear censorship, where providers will charge more or offer less access to applications which the providers do not support.
Free-range advocates fear monopolization, where providers will limit access to applications which compete with the providers' own search engines, services, and competing applications.
Free-range advocates fear user discrimination, where providers will analyze users' access records and charge them more for access to packages of applications which they are most likely to seek.
Free-range advocates fear declining standards, as providers use bit-shaping to degrade the quality of service from some applications to give advantages to services owned or favored by the providers.
Free-range advocates fear extortion, where providers will charge fees to applications to avoid throttling or blocking without improving the providers' service between the applications and consumers. This fear is often described as charging fees for pseudo-services.
Supporters of an "intelligent network" believe that market forces will increase investment, quality, and pricing by providers as competition will provide a more rational basis for profit motives involving providers, consumers, and applications.
Supporters of an "intelligent network" believe there is no justification for regulation of the internet.
Some supporters of an "intelligent network" believe "net neutrality" is just a hollow slogan, seizing populist support without a justification for onerous, expensive, and stultifying restrictions without justification.
Some supporters of an "intelligent network believe that improved profit motivation will increase internet service innovations in rural areas and underserved communities of color.
Some supporters of an "intelligent network" believe that regulation will squeeze out competition, where current large providers will be better equipped to absorb regulatory costs that will prevent new competitors from entering the market.
Some supporters of an "intelligent network" believe that regulation will freeze billions in R&D, where giant providers will face less competition from entrants and will shift assets to regulatory compliance.
Some supporters of an "intelligent network" believe that regulation will deter improvements, as providers will not have incentives to build out the current system.
Some supporters of an "intelligent network" believe that regulation will delay replacement, as net neutrality will stultify innovation and discourage the invention and replacement of the current internet.
In 2015, the free-range advocates prevailed when they persuaded President Obama and his FCC to impose net neutrality requirements by treating the Internet as a Title II utility and restrict the service and pricing powers of the providers.
In December, 2017, supporters of an "intelligent network" persuaded President Trump and his FCC to repeal the 2015 FCC rules.
What will happen? Prior to the November, 2018 election, Congress is unlikely to reverse the FCC's latest decision. But innovation will continue. The current internet will soon seem as distant as the amazing IBM Selectric III typewriter and White-Out. You will invent, enjoy, and replace it with something new that will make some of you rich and most of you happy.
https://fas.org/sgp/crs/misc/95-815.pdf
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https://fas.org/sgp/crs/misc/95-815.pdf
Commentator A,J, Liebling quipped that "freedom of the press belongs only to those who own one." That is no longer true. Bill Gates, Steve Jobs, and their contemporaries have placed the means to publish news and opinion o every desktop or in every hand.
It will be up to the courts to determine whether the rights, responsibilities, and regulation of traditional journalists which have been approved by the courts and legislatures over the past 226 years in America will be extended to "citizen journalists" who rely on the new technologies.
Although the Supreme Court has not ruled directly on the question of bloggers and non-traditional journalists, the Ninth Circuit Court of Appeals in Obsidian Finance Group v. Cox in 2014 that bloggers enjoy the same protections from libel claims as traditional newspapers and periodicals. The "protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story."
It is still unclear if non-traditional journalists enjoy such protections as shield laws and copyright infringement limits.
QUESTION 1: How did John Peter Zenger of New York help to prompt James Madison to include freedom of the press in the Bill of Rights?
Zenger printed a newspaper in New York City which published articles by unidentified authors that were highly critical of Royal Governor William Cosby. It accused Cosby of corruption, collusion with the French enemy, and idiocy. In 1733, Zenger was jailed for libel, which ten meant publishing criticism (true or false) of the government without identifying the authors.
Governor Cosby appointed a first jury, which was packed with Cosby's employees. But Zenger's wife continued to print the newspaper with articles stirring pubic sentiment against the corrupt jury. The judge was forced by public disruptions to appoint a second, impartial jury.
At the 1735 trial, the judge ordered the jury to convict Zenger if they believed he printed the anonymous articles, which he had admitted. But the jury heeded the arguments by Zenger's lawyer that the Crown must prove that Zenger's charges of corruption were false. He closed by stating "This is not the cause of one poor printer. It is the cause of liberty." The second jury took ten minutes to acquit Zenger.
QUESTION 2: How did Benjamin Franklin and his pamphlets help to prompt James Madison to include freedom of the press in the Bill of Rights.
In 1723, ten years before Zenger was jailed for publishing "libel against the government" in New York, Franklin's brother James was jailed on "contempt" charges for criticizing government. Franklin took over his brother's newspaper.
In pamphlets and other newspapers over the next 50 years, Franklin criticized such British taxes on the colonies as the Molasses Act and the Stamp Act.
In 1776, Franklin presided over the Second Continental Congress and the Constitutional Convention in Philadelphia. He served on the committee of five which drafted the Declaration of Independence.
Although raised as a loyalist subject, Franklin's pamphlets, newspapers, and other writings showed that he evolved into a crucial advocate of individual liberty, free speech, and the free press.
QUESTION 3: How did Samuel Adams and his pamphlets help to prompt James Madison to include freedom of the press in the Bill of Rights?
Benjamin Franklin wrote several introductions to pamphlets written and published by Boston firebrand Samuel Adams. In 1772, Adams wrote "The Rights of the Colonists" and the independence-leaning Constitution of Massachusetts.
In 1773, Adams organized the Boston Tea Party which protested the imposition of a tax on tea imports to Boston, New York, Philadelphia, and Charleston.
By 1774, Adams had grown into full support of a battle for independence, writing "The country shall be independent, and we will be satisfied with nothing short of it."
Adams organized "Committees of Correspondence" which circulated and published demands for liberty throughout the colonies.
QUESTION 4: How did British pamphleteer Thomas Paine help to prompt James Madison to include freedom of the press in the Bill of Rights?
Benjamin Franklin persuaded Paine to move to Philadelphia in 1774, where Paine began to publish a pro-liberty newspaper.
In 1776, Paine published the pamphlet Common Sense, which was read in every hamlet in the colonies. John Adams later wrote that "without the pen of the author of Common Sense, the sword of Washington would have been raised in vain."
From 1776 to 1783, Paine published a series of pamphlets title The American Crisis which reported on the American Revolution and spurred spirited resistance.
Paine later moved to France and supported the French Revolution. But he fell afoul of Robespierre and was jailed for treason. James Madison negotiated Paine's release and return to America. Only six people attended Paine's funeral in 1809, because Paine had expanded his attack on organized authority to include resistance to Christianity.
QUESTION 5: Does freedom of the press apply only to federal restrictions or regulations?
The Supreme Court held in Near v. Minnesota in 1931 that the federal guarantee of a free press extended to local government through the Fourteenth Amendment. The Supreme Court struck down a Minnesota law targeting publishers of malicious or scandalous newspapers. James Near published a small neighborhood paper that was sharply critical of what he perceived as ties between the city government and organized crime involved in gambling.
The Hennepin County Attorney, rabid populist Floyd B. Olsen, prosecuted Near and his partner Howard Guilford when they printed a story that Floyd's successful campaign for Governor had been funded by the gambling syndicate. Shortly after Olson's election as Governor, the gangsters killed Guilford with a shotgun blast to his head at the wheel of his car. Shortly thereafter, another Minneapolis journalist, Walter Liggett was mowed down with a Thompson submachine gun by a gangster who was linked to Governor Olson and Minneapolis Mayor Hubert H. Humphrey. Liggett was killed in his driveway in front of his wife and daughter, but the gangster was acquitted. A third Minneapolis journalist, Arthur Kasherman, was shot to death after criticizing city officials, and his death was credited with the election of Mayor Hubert H. Humphrey.
The 5-4ndecision in Near v. Minnesota was crucial in the "switch in time that saved nine" in blocking President Franklin Roosevelt's threat to "pack the Supreme Court" by adding liberal justices to the nine-member Court and save the New Deal from court reversals. Conservatives William Howard Taft and Edward Sanford died within five hours of each other. The four remaining conservative Justices opposed Near's extension of the freedom of the press to state and local laws, but the replacement of Taft and Sanford by Charles Evans Hughes and Owen Robert persuaded Roosevelt to end consideration of the Court-packing plan.
QUESTION 6: What restrictions and regulations may be placed on freedom of the press and traditional journalists?
DEFAMATION OF PRIVATE PERSONS: The courts have upheld lawsuits by private persons who can show that a statement spoken or published about them is: false; injurious; and unprivileged.
Private people who are defamed have more protection than public figures because freedom of speech is not as important when the statements do not involve an issue of public interest, A private person who is defamed can prevail without having to prove that the defamer acted with actual malice.
The Supreme Court ruled in Dun & Bradstreet v. Greenmoss Builders in 1985 that a private plaintiff could recover if a credit reporting agency reported that the plaintiff had filed for bankruptcy when it had not. The fact that the defendant was not a media member appeared to temper the Court's holding for the plaintiff.'
The Supreme Court ruled in Hutchinson v. Proxmire in 1979 that a behavioral scientist engaged in animal research studies did no become a public figure required to show actual malice= merely because he applied for federal grants and published in professional journals.
The Supreme Court held in Wolston v. Reader's Digest Association in 1979 that a person who engages in criminal misconduct does not automatically become a public figure even when the defamatory statements relate solely to his conviction.
The Supreme Court held in TIME v. Firestone in 1976 that marriage to a very wealthy person and divorcing such a person does not amount to voluntarily entering the public arena even though press conferences were held, because going to court was the only way she could dissolve her marriage.
DEFAMATION OF PUBLIC OFFICIALS AND FIGURES: In New York Times v. Sullivan in 1964, the Supreme Court held that public officials could only sue for libel if they proved that a false statement was published with "actual malice," where the publisher either knew it was not true or didn't care whether it was true or not and was reckless with the truth.
In the Sullivan case, the newspaper published an ad about police conduct involving protestors in Alabama involved in the civil rights movement. The ad contained several false statements. An official in charge of local police alleged that he had been defamed because people associated him with the false statements about police action. The Supreme Court held that his libel suit could nor stand because he had not proved actual malice on the part of the publisher.
The Supreme Court in Gertz v. Robert Welch, Inc. in 1974 gave some relief to a private person in a defamation case, but held that such a person in a defamation case might have to prove some measure of actual malice in order to receive automatic punitive damages.
Gertz was a lawyer hired by the family of a murdered youth to sue a Chicago police officer who had been convicted for the murder. Robert Welch, Inc. was the corporate name of the radical John Birch Society which published a series of articles accusing Gertz of supporting a Communist conspiracy to replace local police departments with a totalitarian national police force.
The Supreme Court held that Gertz was a private person even though he had been a public defender. However, the Supreme Court held that so long as they do not impose liability without fault, states are free to establish their own standards of liability for defamatory statements made about private individuals. However, the Court also ruled that if the state standard is lower than actual malice, the standard applying to public figures, then only actual damages may be awarded.
OBSCENITY: The same standards and restrictions on obscenity and child pornography that have been applied to free speech have been applied to freedom of the press.
The Supreme Court held in Roth v. United States in 1957 that obscenity is unique in being the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it is harmful to individuals. According to the Court, there is evidence that, at the time of the adoption of the First Amendment, obscenity “was outside the protection intended for speech and press.” Consequently, obscenity may be banned simply because a legislature concludes that banning it protects “the social interest in order and morality.” No actual harm, let alone compelling governmental interest, need be shown in order to ban it.
CHILD PORNOGRAPHY: The Supreme Court in United States v. 12 200-Ft. Reels of Film in 1973bheld that child pornography is material that visually depicts sexual conduct by children. It is unprotected by the First Amendment even when it is not obscene; that is, child pornography need not meet the Miller test to be banned. Because of the legislative interest in destroying the market for the exploitative use of children, there is no constitutional right to possess child pornography even in the privacy of one’s own home
FIGHTING WORDS: So-called “fighting words” also lay beyond the pale of First Amendment protection in either the free speech or free press realms.
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QUESTION 7: What are the crucial cases relating to the ban on "prior restraints" on journalists for the content of their reporting?
1. The Supreme Court held in Near v. Minnesota in 1931 that the First Amendment guarantee of press freedom also applied to state and local restrictions on future publication of reportorial content because the First Amendment protection of press freedom was incorporated on local government by the Due Process Clause of the Fourteenth Amendment.
The Near Court also held that no prior restraint of the content of news by the government is allowed unless it reveals crucial military information, contains obscenity, or may directly incite "acts of violence."
2. The Supreme Court held in Lovell v. City of Griffin in 1938 that a city could not require a license or sanction before the distribution of a tract. The statute was challenged by a Jehovah's Witness. Alma Lowell was sentenced to 50 days in jail for refusing to pay the $50 fine for violating the Georgia ordinance by distributing tracts without a license.
The Lowell Court held that the ordinance was overbroad because it restricted the distribution of materials that were not obscene, offensive to public morals, or advocating unlawful conduct.
3. The Supreme Court held in Hannagan v. Esquire in 1946 that a single official could exercise unilateral national censorship against a publication by denting a second-class postage rate that regularly published a Vargas Girl feature and other drawings of scantily-clad female figures.
The Esquire Court held that " Such a power is so abhorrent to our traditions that a purpose to grant it should not be easily inferred. To withdraw the second-class rate from this publication today because its contents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social or economic views seemed harmful to another official… Congress has left the Postmaster General with no power to prescribe standards for the literature or the art which a mailable periodical disseminates."
4. The Supreme Court held in New York Times v. United States in 1971 that the government bore a heavy burden to justify a prior restraint against the publication of government secrets. In 1967, Defense Secretary Robert McNamara authorized the creation of a "massive top secret" history of U.S. involvement in Vietnam. In 1971, Daniel Ellsburg who had authored much of the 48=volume report, leaked 7,000 pages to the newspaper. The Nixon Administration sought to bar the publication of the study's findings.
The New York Times Court allowed the publication. It held: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity”. The purpose of this statement was to make the presence of the inherent conflict between the Government’s efforts and the First Amendment clear. The decision then stated that the government “thus carries a heavy burden of showing justification for the imposition of such a restraint”. This reinforced the idea that it was the Nixon Administration's responsibility to show sufficient evidence that the newspapers’ actions would cause a “grave and irreparable” danger.
5. The Supreme Court held in Miami Herald Publishing Co. v. Tornillo in 1974 that a Florida state law requiring newspapers to allow equal space in their newspapers to political candidates in the case of a political editorial or endorsement content was unconstitutional.
The court held that while the statute does not "prevent [newspapers] from saying anything [they] wish" it "exacts a penalty on the basis of the content." Because newspapers are economically finite enterprises, "editors may conclude that the safe course is to avoid controversy," thereby chilling speech. Furthermore, the Court held the exercise of editorial judgement is a protected First Amendment activity. In effect, this ruling reaffirmed the constitutional principle of freedom of the press (detailed in the First Amendment) and prevented state governments from controlling the content of the press.
6. .The Supeme Court in Nebraska Press Assn. v. Stuart in 1976 struck down a Nebraska trial judge's gag order limiting media coverage of a murder trial. Police had given reporter's a very accurate description of the killer and later informed them of Erwin Charles Simants' detailed confessions to sex crimes and the murder of six members of the Kellie family, the trial judge ordered the media to limit its description of the evidence.
The Stuart Court wrote, "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment Rights".[3] The court ruled this was particularly at issue when dealing with "communication of news and commentary on current events".[6] According to the ruling, it was inappropriate to bar media reporting on a criminal case prior to the trial itself, except in matters where a "clear and present danger" existed that would impede the process of a fair trial.[3] The court characterized the press as "the handmaiden of effective judicial administration, especially in the criminal" process.
7. The Supreme Court in Landmark Communications v. Virginia in 1976 struck down a Virginia statute which led to the conviction of a publisher for revealing that a judge was under secret investigation by a state panel before it made a probable cause finding.
Although the Landmark Court rejected Landmark's claim that truth was an absolute defense, it held that the Commonwealth's interest in blocking premature disclosure of an investigation was outweighed. In its conclusion, the Court wrote: "the [clear and present danger] test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil as well as its likelihood against the need for free and unfettered expression."
8. The Supreme Court held in Tory v. Cochran in 2005 that a "prior restraint" against pickets and written statements by a disgruntled former client against his previous lawyer was overbroad in light of the attorney's death seven days after the Supreme Court's hearing in the case.
The case involved famed O/J/ Simpson defense counsel Johnny Cochran. Twenty years after Cochran withdrew as Tory's counsel in a civil rights case, Tory began to picket and write signs accusing Cochran of accepting bribes and being a thief. In Cochran's defamation action, the trial judge ordered Tory to never again mention or write Cochran's name. The Court ruled 7–2 that in light of Cochran's death, the injunction limiting the demonstrations of Ulysses Tory "amounts to an overly broad prior restraint upon speech"
9. Journalists should also be wary of special taxes and restrictions on their businesses. A key case was from Minnesota. In 1983, the Supreme Court struck down in Star Tribune v. Revenue Commissioner a special state tax on any publisher's use of more than $100,000 per year of newsprint and ink products.
QUESTION 8: Are there special limits on press freedom in the form of restrictions, regulations, licensing or taxation of radio or television?
1. The first federal regulation of electronic broadcasting had nothing to do with First Amendment concerns. The Wireless Ship Act of 1910 required that all ships travelling between the United States and other nations must carry and monitor a rescue radio.
2. In response to the sinking of the R.M.S. Titanic and the loss of hundreds of lives, Congress passed the Radio Act of 1912. It called for licensing all transmitting apparatus for interstate or foreign commerce by the Secretary of Commerce, required that each station operator be licensed and that the government prescribe regulations to minimize interference. Other sections of the act provided for licensing of experimental stations, regulation over the type of modulation, prohibition against divulging content of private messages, and for giving preference to distress signals. It did not mention broadcasting.
3. The growth of broadcasting instead of point-to-point communication led to efforts by Commerce Secretary Herbert Hoover to limit broadcast interference by limiting licenses in geographic areas. A 1923 Court of Appeals decision which held that Hoover lacked authority to license broadcasters led to chaos on the airwaves.
4. In 1926 court decisions, the licensing power of the Commerce Department was stricken, leading to further chaos. Congress passed the Radio Act of 1927. The compromise legislation specifically dealt with broadcasting for the first time. It created a framework for regulating the rapidly growing broadcasting industry investing decision-making powers in an independent agency.
5. Seven years later, with the passage of the Communications Act of 1934, Congress merged oversight of wire and wireless communication under the rubric of the Federal Communications Commission.
6. One of the significant outcomes of the 1927 Act, still debated today, was the fact that broadcasters were accorded fewer First Amendment rights than newspapers. The legislation clearly designated the electromagnetic spectrum as part of the public domain, allowing the temporary Commission power to grant rights to users of the spectrum but forbidding private ownership over communication channels. 7. In addition, extreme interference problems encountered with the breakdown of the 1912 Act suggested that a real scarcity of available channels existed. This complicated the task of the commission to devise a permanent allocation scheme that would suit all political and business constituents. Since the known radio spectrum and limited engineering capabilities could not afford all who wanted to speak an opportunity to do so, the radio commission was empowered to impose rules and regulations limiting the number of entities actually using the airwaves. Legislators provided the commission with broad discretionary powers subject to adjudication by the federal courts.
8. Public feuding between local legislators who wanted stronger local stations and radio manufacturers who wanted stronger national networks led to stagnation by the Federal Radio Commission during its seven-year tenure under the 1927 Act.
9. This led to the passage of the Communications Act of 1934 which established a permanent commission to oversee and regulate the broadcasting and telecommunications industries. In creating the Federal Communications Commission, Congress gave the permanent agency the same broad powers that were given to the FCC. These powers were extended to include wired communications services that had been under the jurisdiction of the Interstate Commerce Commission.
10. By the end of the 1930's, the FCC was trying to mitigate the power that NBC held over CBS and the smaller Mutual network, and the power that manufacturers and other network owners exerted over local licensees. The FCC was seeking to impose more localized service standards on licensees than the networks wanted to serve.
11. Facing a challenge to the FCC by the most powerful network, the Supreme Court acted in NBC v. United States in 1943, The Supreme Court first upheld the constitutionality of the Communications Act of 1934 and recognized broad regulatory powers for the FCC. A congressional backlash led to the resignation or non-reappointment of several FCC commissioners.
12. The progressive reformers also tried to limit political commentary. They proposed the Mayflower Doctrine in 1945 which would have prohibited political editorializing, expressing partisan opinion rather than news. In 1949, the rule was revoked and replaced with the Fairness Doctrine allowing radio stations to choose their own programming, but requiring a reasonable amount of air time to be devoted to public service programming of interest to the community and be designed to hear opposing views on public issues.
13. The residual progressive FCC staffers also studied the radio industry and in 1946 issued the FCC "Blue Book" of proposed regulations which would require local licensees to feature: 1) more local programming; 2) more programming on public topics; 3) sustained quality of all programming; and 4) elimination of advertising abuses. This effort was killed by opposition by local licensees, owners of chains of stations, broadcast networks, and local legislators who tied the Blue Book to allegations of a Communist conspiracy. This dispute ended when William Randolph Hearst successfully combated the denial of a renewed license to his WBAL radio station in Baltimore in 1951.
14. The Supreme Court in Red Lion Broadcasting v. FCC in 1969 upheld the constitutionality of the Fairness Doctrine. After the 1964 election, a radio station aired a 15-minute attack on the author of a book which had criticized presidential candidate Barry M. Goldwater. he station denied equal time for rebuttal by the author. In 1987, President Ronald Reagan vetoes a bill that would have turned the Fairness Doctrine into federal law. In 2011,the FCC revoked the Fairness Doctrine.
15. The growth of television revenues, the decline of AM radio revenues, and the decline of power of radio networks in the 1950s led to decreased FCC regulatory efforts in that decade.
16. But from 1960 to 1980, the FCC slowly increased the regulatory burden on broadcasters with record-keeping requirements, rules against cross-ownership of broadcasters and ownership by local newspapers, political access, and obscene content or words led to a push for de-regulation.
17. The growth of regulation from 1940 to 1980, when combined with massive changes in the industry, competition, and changes in audience loyalties, led to massive de-regulation after 1980 under president Reagan and his FCC Commissioner Mark Fowler. The statutory adoption of the Fairness doctrine was vetoed in 1987. Under President Obama, the Fairness Doctrine was repealed completely as a regulation in 2011.
18. However, the Supreme Court held in CBS v. FCC in 1981 that the FCC may require broadcasters to sell reasonable amounts of time to legally qualified candidates for federal office.
19. The Supreme Court upheld in 1978 in FCC v. Pacifica Foundation the FCC's ban on the broadcast of any of "the seven deadly words" or of the broadcast of indecent monologues on the grounds that broadcasts could reach children and that broadcasts invaded individuals' homes. The invention of V-chip technology has eroded those grounds for this censorship.
20. With nearly forty years of increasing de-regulation under both Republican and Democrat Presidents, as well as with the rapid growth of cable broadcasts, podcasts, and other technologies, the regulation of broadcasts has shrunken rapidly and vastly. The renewal of broadcasters' licenses has been called a post-card and rubber stamp operation.
QUESTION 9: What federal, state, and local regulations are used for cable television?
The FCC has imposed federal limits on cable broadcasters with respect to: 1) the amount of advertising during children's programming; 2) obscenity with standards looser than those for over-the-air broadcasters; 3) maximum fees which cities may charge to cable providers; 4) billing practices; and 5) response times for customer requests and complaints.
At the state level, Minnesota only bars cities from granting exclusive franchises to a single franchisee and regulates municipal rules on franchise contracts and access to customers.
Municipal regulation in Minnesota is allowed for capping the price for basic cable service, requiring PEG channels for public, educational, and government programs, and requiring providers to provide certain levels of service and programming.
QUESTION 10: What restrictions on "press freedom" may be imposed on the internet, podcasts, blogs, and other emerging technologies?
Technology developments in communications may be likened to technology developments in weapons systems.
With weapons systems, new technology may give temporary advantages to offensive goals (long-bows, submarines, inter-continental missiles, or stealth bombers) or to defensive goals (armor suits, sonar, anti-ballistic missiles, or satellites). You can envision new weapons technology, but you can seldom predict them.
With communications, new technology may give temporary advantages to providers (printing presses, typewriters, telephones, crystal sets. radios, televisions, Univac, desk tops, cell phones, lap tops, and surfaces) or to consumers (print shops, correspondence committees, kit-builders, samizdats, copier machines, faxes, website builders, and the "dumb pipe" internet).
In either race - - between offensive and defensive weapons systems, or between providers and consumers of communications - - the government is always running to catch up. In communications, the government is running to catch up with censorship, restrictions, limitations, court orders, injunctions, statutes, and regulations.
Along with the government, there will be anticompetitive forces applied by the owners of status quo providers. But in the end, the cattle barons will lose to the shepherds, and the shepherds will lose to thhe farmers, and the farmers will lose to the factory farmers. Better mousetraps will be built.
But communications are the lifeblood of freedom. And freedom is like water. It is always finding new ways to work around or through any dam, levee, foundation, or channel. Any effort at censorship, regulation, or limitation will eventually be defeated by new communications technology.
The question will be how long you will have to wait for renewed freedom to blossom.
NET NEUTRALITYL In 2003, Columbia law professor Tim Wu outlined a theory called "net neutrality" which would keep internet providers from closing the "open range" of an unrestricted internet available to all users.
Free-range advocates feared blocking, where providers would deny access to internet services that were absorbing too much bandwidth for consumers. The French provider Orange had found in 2013 that over half of its bandwidth was being absorbed by YouTube and other Google sites, so it blocked that access until Google paid a special fee to Orange.
Free-range advocates feared throttling, where providers would secretly slow uploads of applications which were absorbing too much bandwidth. In 2011, the FCC ordered Comcast to stop throttling consumers' ready access to BitTorrent.
Free-range advocates feared limousine favoritism, where providers would charge more for fast access to applications which absorbed too much bandwidth.
Free-range advocates fear data constipation, where providers charge more to certain applications to create advantages for their own search engines, Internet phone services, and streaming video services.
Free-range advocates fear censorship, where providers will charge more or offer less access to applications which the providers do not support.
Free-range advocates fear monopolization, where providers will limit access to applications which compete with the providers' own search engines, services, and competing applications.
Free-range advocates fear user discrimination, where providers will analyze users' access records and charge them more for access to packages of applications which they are most likely to seek.
Free-range advocates fear declining standards, as providers use bit-shaping to degrade the quality of service from some applications to give advantages to services owned or favored by the providers.
Free-range advocates fear extortion, where providers will charge fees to applications to avoid throttling or blocking without improving the providers' service between the applications and consumers. This fear is often described as charging fees for pseudo-services.
Supporters of an "intelligent network" believe that market forces will increase investment, quality, and pricing by providers as competition will provide a more rational basis for profit motives involving providers, consumers, and applications.
Supporters of an "intelligent network" believe there is no justification for regulation of the internet.
Some supporters of an "intelligent network" believe "net neutrality" is just a hollow slogan, seizing populist support without a justification for onerous, expensive, and stultifying restrictions without justification.
Some supporters of an "intelligent network believe that improved profit motivation will increase internet service innovations in rural areas and underserved communities of color.
Some supporters of an "intelligent network" believe that regulation will squeeze out competition, where current large providers will be better equipped to absorb regulatory costs that will prevent new competitors from entering the market.
Some supporters of an "intelligent network" believe that regulation will freeze billions in R&D, where giant providers will face less competition from entrants and will shift assets to regulatory compliance.
Some supporters of an "intelligent network" believe that regulation will deter improvements, as providers will not have incentives to build out the current system.
Some supporters of an "intelligent network" believe that regulation will delay replacement, as net neutrality will stultify innovation and discourage the invention and replacement of the current internet.
In 2015, the free-range advocates prevailed when they persuaded President Obama and his FCC to impose net neutrality requirements by treating the Internet as a Title II utility and restrict the service and pricing powers of the providers.
In December, 2017, supporters of an "intelligent network" persuaded President Trump and his FCC to repeal the 2015 FCC rules.
What will happen? Prior to the November, 2018 election, Congress is unlikely to reverse the FCC's latest decision. But innovation will continue. The current internet will soon seem as distant as the amazing IBM Selectric III typewriter and White-Out. You will invent, enjoy, and replace it with something new that will make some of you rich and most of you happy.
http://www.oswego.edu/~messere/RadioReg.pdf
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https://fas.org/sgp/crs/misc/95-815.pdf
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