Fox News Channel Senior Judicial Analyst Judge Andrew Napolitano says the Obama administration’s efforts to regulate the internet constitute a major infringement upon our freedom of speech but he believes the new plan will get struck down in court for lack of transparency.
The five members of the Federal Communications Commission (FCC) are scheduled to vote Thursday on a plan to advance Obama’s net neutrality agenda that also allegedly calls for the internet to be treated like a utility. Despite the major changes this plan could well involve, lawmakers and the media have been rather quiet about it.
“People don’t know the danger that is coming. The danger that is coming is a gaggle of bureaucrats here – three Democrats and two Republicans, the Republicans will probably dissent – claiming they have the power to regulate the internet,” said Napolitano.
He says Congress has passed no statute authorizing new government controls on the internet and the first amendment clearly states that Congress nor any government agency it created can make no law restricting the freedom of speech.
Napolitano admits the the stated goal of net neutrality sounds innocuous when first presented but he says the problem Obama and his allies really have is with the free market.
“They claim that the purpose of their regulation is to prevent the internet from affording priority and faster service to certain preferred users. Would we all like to have fast service? Yes. Do we all know how to get fast service? Yes, we do. Might that cost us something? Yes, it might, but at the present time it is free from government regulation,” said Napolitano.
However, the judge says the public goal of establishing internet fairness will come at a very heavy price.
“If the government regulates the internet and tells providers how fast they can move information, we will soon see the government regulating the cost of the internet and we will eventually, just like with broadcast television, see the government regulating the content of the internet,” said Napolitano, who described the chain reaction he believes the FCC proposal would trigger.
“Right now, the internet is the freest marketplace of ideas and transfers of information that the world has ever known. At least in the United States, it is utterly and totally – there are some minor exceptions – unregulated. Once these federal bureaucrats get their hands on it, give them a couple of years. It’ll look like broadcast television, a watered down version of what we now have,” he said.
Also at work, according to Napolitano, is the federal government’s unquenchable thirst for more and more power.
“Think about it. You’re a commissioner on the FCC. You’re regulating telecoms and broadcast TV. Wouldn’t you like to regulate cable while you’re at it? Wouldn’t you like to regulate the internet while you’re at it. It’s human nature when you have power to want to expand the power. That’s why we have a Constitution, to prevent these expansions of power,” said Napolitano.
One of the greatest frustrations for those concerned about the FCC plan eroding speech rights is that the commissioners will not, and say they cannot, reveal any details of the package until after the vote on Thursday. Napolitano says that tactic is actually a double-edged sword. He says the downside of the secrecy is obvious.
“It’s bad because the government has an obligation under federal law, when any of its administrative agencies plan on changing their rules and expanding their power or modifying substantially the manner in which they regulate, to publish those rules for 30 days,” said Napolitano.
And because the FCC is not following the law, it gives opponents fertile ground for an appeal.
“The good part is the failure to publish this will invalidate the rules once they’re challenged before a federal court. The government is shooting itself in the foot,” said Napolitano, who sees this turning into a replay of another fierce court battle involving the administration.
“This is the very same thing it did when it attempted to implement President Obama’s changes in immigration law and they were enjoined from doing so last Monday by a federal judge in Texas, who said, ‘You didn’t publish these rules for 30 days, which gives the public the opportunity to comment and, more importantly, Congress the opportunity to modify the rules,” said Napolitano.
Napolitano says the biggest asset for net neutrality supporters right now is the disinterest of the American people. He says if that changes, the whole debate will change.
“This proposal by the president (these are the president’s appointees on the FCC) actually has the support of the leadership of both political parties, big government Republicans and big government Democrats. But some of them will have great pause for reconsideration if there is a great national debate on this,” said Napolitano.
He says fierce debate is exactly what the Democratic majority of commissioners is trying to avoid through their secretive tactics.
“That’s the reason why the three Democrats on the FCC want to force it through, so there will be no great national debate, because a great national debate will result in the undoing of this,” said Napolitano.