The ACLU vs. American Liberty

by | Jul 24, 2002 | POLITICS

The American Civil Liberties Union recently released a white paper admitting that it is not particularly concerned with defending free speech. But not to worry, this does not make the ACLU purposeless: according to the paper, the leaders in the ACLU derive just as much pleasure from the hatred of success and abolition of property […]

The American Civil Liberties Union recently released a white paper admitting that it is not particularly concerned with defending free speech. But not to worry, this does not make the ACLU purposeless: according to the paper, the leaders in the ACLU derive just as much pleasure from the hatred of success and abolition of property rights as younger thugs get from kicking puppies.

The white paper is titled, “No Competition: How Monopoly Control of the Broadband Internet Threatens Free Speech,” although after reading the first three paragraphs it is obvious that the ACLU does not even understand the meaning of the concept “free speech.” The goal of the white paper is, presumably, to convince the US government to impose much stricter (not to say draconian) regulations on the cable industry as it begins to offer broadband Internet services (i.e., cable modems). In a pathetically sophomoric attempt to justify its position, the ACLU threw the phrase “freedom of speech” into one of the introductory sentences, and then proceeded to talk about the wonders of the Internet. The ACLU’s “argument,” to use the term loosely, is that “liberties such as freedom of speech are of no value if the forums where such rights are commonly exercised are not themselves free.”

That sounds cute, but there are two ugly problems with it. First, from what should these “forums” be “free?” The ACLU does not answer. One might think that the obvious answer is that they should be free from government intervention; from the coercive influence of men with guns setting arbitrary rules about the operation and use of such forums. But the ACLU goes on to argue *for* government intervention, so that cannot be the intended answer. Perhaps the ACLU is seeking a freedom of a different kind: perhaps the ACLU is hoping that the government can use laws and guns to change the landscape of these forums; to give people and companies more or less (or different) access to the Internet than they would have otherwise deserved on the open (free) market. But arguing for such a “freedom” from reality is hardly sane, and trying to tie it to freedom of speech is dishonest at best. The only alternative is that the ACLU means something different altogether. Perhaps it means “free” as in “costs nothing,” but then the freedom of speech could not exist unless publishers published anything that anyone wanted at no cost, and television stations gave air time to whomever wanted it in any quantity they wanted, also at no cost. Even the ACLU could not be that stupid, could it?

The second major problem with the ACLU’s argument stems from a complete inability to understand what “freedom of speech” means. The “freedom of speech” that the ACLU is referring to is identified by the first amendment to the Constitution, which reads, “Congress shall make no law…abridging the freedom of speech, or of the press.” It guarantees that the government will not *prohibit* citizens from saying (or writing) whatever they want. It does *not* say that the government will make laws forcing other people to listen to them, or forcing other people to publish their words in newspaper articles, books, television, or even on the Internet. If you cannot afford your own printing press, then you’ll have to convince someone who owns one to publish your work. If you have written a book about the psychological benefits of eating warts from dead lab mice, you will probably have to pay someone to publish it. If you’ve discovered the cure for cancer and you’ve written an article about it, someone will probably pay you for it. If you can afford a computer and you can afford to pay for a wire that connects your computer to everyone else’s computer, great–enjoy all of the free porn the Internet has to offer. If you can’t, then you’ll have to stick to magazines. That’s life, and the “freedom of speech” entitles you to complain about it all you want, but nothing more.

If only the ACLU understood that.

With nothing but a horribly flawed argument as a foundation, the rest of the ACLU white paper on broadband Internet access avoids discussion of free speech wherever possible. Instead, it describes “5 points” in which it praises the Internet and denounces the cable television industry, but it does not even do that very well.

The first of these points is that “the Internet has succeeded because it is open.” Although the ACLU does not define “success” in this context, it is reasonable to assume that what it means is that the Internet: 1) Exists, 2) Is popular, and 3) contains relatively unregulated content (in other words, the government has kept its “freedom of speech” promise). On the other hand, the ACLU is perfectly clear about what it means by the word “open,” although it is not a definition that one might expect. When the ACLU says, “open,” it means, believe it or not: *regulated* by common carriage restrictions imposed on the telephone network. In other words, the first point, “the Internet has succeeded because it is open” means: the Internet exists, is popular, and remains free of government censorship because the underlying phone network by which most users connect to it is regulated by common carriage restrictions.

Certainly, one must concede that the Internet might look *different* if the phone networks were not heavily regulated, but would it cease to exist? No, of course not. Would it be less popular? Perhaps, although it may be more popular among groups who use it for one purpose, and less popular among those who use it for another–it is hard to say either way. Would the government suddenly start writing laws to inhibit free speech? Probably not–the government could do that tomorrow if it wanted to, and there is no reason to think that its own regulation of the phone networks is somehow preventing it from violating the right to freedom of speech.

To say that the Internet has succeeded because the phone network is regulated by the government is not only silly, it robs the telecommunication companies, switch manufacturers, PC makers, software developers, content providers, and countless others of their value as producers. The Internet is successful because people invested heavily in building a more extensive infrastructure, faster switches, better software, faster computers, and better content. They did this because they wanted to make money, not because there were government restrictions on the phone companies. It is the profit motive, not the common carriage regulations, that is responsible for the success of the Internet. Nice try, ACLU.

The second point the ACLU makes is that “cable networks are not open,” and this is true. If “open” means subject to common carriage regulations, then the cable network is not “open.” Although this point is made in an accusatory fashion, it is actually a compliment. Hopefully, the cable networks will never become “open” by the ACLU’s definition.

The third point is that “cable providers wield total control over Internet use.” Although this may seem like a wild statement, what the ACLU really means is that when a cable company decides to lease some of its property to a customer for Internet use, the cable company is allowed to set terms for the lease. The customer does not have to agree to these terms, and can decide not to buy the service if he wants, and the cable company can decide not to offer the service unless the customer agrees. What upsets the ACLU is the fact that the cable company can charge whatever it wants to, enact any monitoring policy it wants, and provide any kind of content it wants. It can charge a low, flat fee with unrestricted access and no monitoring, or it can charge a large per-minute rate, restrict access to content from, and record the size of the underwear that you buy over the Internet. Neither business model is guaranteed to be popular enough with consumers to succeed, and in order to prosper the cable company must figure out what consumers want from the Internet. This is called “free trade,” and it happens the same way when you go to the supermarket. If the supermarket wants to sell hamburger buns in packs of eight, it can. If you do not like it because you only want seven, then you do not have to buy any hamburger buns all at. The supermarket is not forced by government regulation to offer hamburger buns in packs of seven. This, apparently, bothers the ACLU.

Points four and five both lament that cable companies are not “restrained” enough. What that has to do with “freedom of speech” is not clear. Point four cries that “cable broadband has not been restrained by competition.” The ACLU then goes on to claim that coaxial cable is the only realistic means of providing broadband Internet access in the future. One obvious exception to this is Digital Subscriber Line (DSL) service offered by phone companies (already regulated by all of those yummy little common carriage laws that the ACLU spent several paragraphs salivating over). But the ACLU dismisses DSL as a viable alternative by demonstrating a clear lack of understanding of the technology. The paper claims that DSL will fail because the service only works if a subscriber is close to a “central office,” and so not many people will be able to get it. While that is true for old, twisted pair, infrastructures, it completely ignores upgrades to fiber or some other medium. It also ignores the fact that a large portion of the population lives in cities, where proximity to a central office is almost guaranteed. Further, it assumes that the technology is static–that there exists no possibility of satellite Internet access or other Internet access options yet-to-be invented. Worse, the ACLU completely ignores a very serious problem with cable networks–a problem that DSL does not face. Cable networks offer a shared medium between consumers and the “central office.” What this means is that the more people who use cable networks to access the Internet, the slower each person’s connection will become. It is unclear whether the current cable infrastructure is even capable of providing broadband service to a large number of users. Nevertheless, DSL is dismissed out-of-hand, and the technological superiority of cable-based Internet is never even questioned. Neither is the call for “restricting” those who provide it.

The last point that the ACLU makes bemoans the fact that “cable broadband is not restrained by regulation.” Savvy readers will realize this is the exact same point as point number two, “cable networks are not open.” And although it cannot count very well, the ACLU is right: cable networks are *not* regulated as heavily as are telephone networks. Good.

In the conclusion of the white paper, the ACLU identifies murder laws as “ground rules so that competition is kept within socially desirable boundaries.” A separate essay could be written about the psychology required to think of murder laws in *that* way, but at least one aspect of ACLU mentality is immediately clear: laws are not about protecting individual rights such as the right to life or the freedom of speech. To the ACLU, laws are about setting “socially desirable boundaries” at the point of a gun.

So, if an ACLU white paper titled “No Competition: How Monopoly Control of the Broadband Internet Threatens Free Speech” is not about free speech, what is it about? It is a spiteful attempt to vilify broadband cable companies by any means possible. It is about resenting their success. It is about undermining the right to private property. Ultimately, it is about making successful corporations “socially undesirable,” all under the ruse of defending “freedom of speech.” What a fraud. With “advocates” like the ACLU, it is a wonder that Americans have any liberties left.

Carter is a part-time free-lance writer and Producer Advocate. He is also a former editor and contributing writer at Capitalism Magazine, where he primarily focused on self-defense and national-defense issues. While at the University of Pittsburgh, Carter was a regular columnist for The Pitt News. In his spare time, Carter instructs both law enforcement and fellow citizens in the defensive use of firearms and is a student of the martial arts.

The views expressed above represent those of the author and do not necessarily represent the views of the editors and publishers of Capitalism Magazine. Capitalism Magazine sometimes publishes articles we disagree with because we think the article provides information, or a contrasting point of view, that may be of value to our readers.

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