There are useful parallels in the issues behind both the network neutrality debate (that is, the Trump administration’s determination to end it all on Dec. 14) and the Masterpiece Cakeshop case regarding (in over-simplified rhetoric) balancing anti-discrimination (against gay couples) with free speech and property rights (the latter may be more relevant in the end). True, net neutrality isn’t back in court yet, but it probably soon will be.
I’ll walk this plank starting with the net neutering (pun?) first. I have to admit, I personally would feel more comfortable if telecom companies were forced to keep the legal designation as utilities (common carriers), which will end some time after Dec. 14. But regulating the designation category of any business can have unintended consequences.
So, first, we have to ask ourselves: may we regulate very large businesses more closely than some small businesses? Libertarians may not like the idea, but in practice the need to do that is very well established in our system. We needed “better regulation” after 2008 of large financial institutions to prevent massive Ponzi setups. Likewise, we’ve long had some regulation in broadcast television. We’ve had rules that prevent movie studios from owning theaters (they seem to be circumvented sometimes), supposedly to prevent too much power in which films consumers see staying with the largest studios. It’s easy for me to imagine extensions of these rules that would prevent me from producing a film literally from my own books, in order to enhance employment opportunities for union writers. Ajit Pai is correct in opposing too much regulation. But – it’s true – with big companies, we have different concerns, like anti-trust laws. The FTC and DOJ can still enforce these against anti-competitive practices by the Comcasts of the world. As a single author and micro-business person, I can’t monopolize an industry or threaten it.
So then we ask, what is a “utility”. A telephone company (Ma-Bell in the past) is a utility, but a TV network is not – the later is a content company (and it is regulated because airwave space, like real estate, is finite). A cable company, however less regulated than a legacy airwaves network, is a content company. A telecom company offers Internet, digital voice phone, and cable, so it is a hybrid of common carrier and content company. A social network like Facebook is a content company (and that gets into Section 230 as to whether Facbook is really a “publisher”). A hosting provider like Blue Host functions like it was a utility for Internet content publishers, but it’s possible imagine that such a company has some influence over content (look at what happened after Charlottesville and the Daily Stormer problem). Most of these companies have fiduciary responsibilities to investors, so regulation is a sensitive issue. Where does the public interest fit in? There seem to be competing interests and various ideological scenarios that can play out. For example, I could imagine (after Charlottesville) some day winding up with a system where no one self publishes until he/she demonstrates some “community engagement”. But it’s also hard to imagine how such a rule could comport with economic self interest (even if the abrogation of net neutrality would let it happen legally).
I do think that over time small business has reason to worry, if Congress and the courts don’t force some sort of regulatory balance. Small business could be forced into franchising to afford the branding that large favored websites have. They could have new requirements for security (https everywhere), website rating, or “pay your own way” reportability some day. And hurting “really small business” in favor of the oligarchs will not promote local manufacturing; it will not “make America great again” as Trump wants. So the “Dems” have some reason to want to regulate. Yet, I have no right to demand that the regulatory environment protect me from more accountability myself, even if that means that a couple years from now many consumers might not be able to access this posting through their own Internet Service provider (which I still doubt will really happen).
I’ll interrupt myself for a moment – and note the PBS interview where one speaker notes that in Portugal, there is no net neutrality and only one provider, and consumers have to pick “bundles”. Can ordinary sites be accessed in Portugal, like on a hotel’s broadband? (I was there in 2001 and could.) The important thing from my perspective is that a consumer be able to get access to everything as today in one package, still reasonably priced if at the high end (as with cable offering all possible channels).
A quick check of Godaddy and other hosting companies still shows inexpensive hosting and an expectation that their business would continue as usual.
I’m left grasping for straws on what the principled answer to Aji Pai’s libertarian-leading claims should be. You need some regulation, but where do you draw the line?
So then, we circle back to “gay rights” and “marriage equality” — where we’ve made so much progress even as the safety of the country is threatened (previous post) and as tribalism frays the political process (as with Trump’s election and his horrible appointments in some areas, even if Trump is all right on gay people himself). And we come to the Masterpiece Cakeshop case, argued before the Supreme Court Tuesday.
There are three areas at issue: property rights, free speech (as connected to religion), and discrimination. Although I sympathize with the libertarian focus on private property rights (as Jacob Hornberge explains on Intellectual Takeout), civil rights law with respect to public accommodations (retail businesses open to the public) is well established. The owner can’t rightfully refuse to sell a cake to a gay couple. Saying we don’t serve “gay weddings” is a bit more ambiguous. I am sympathetic to the idea that the cakeshop owner shouldn’t have to design a cake showing a same-sex couple as décor – but what if his business is based on made-to-order cakes? What if an artist at a county fair refuses to draw black people, or even transgender people? The artist has made himself a public accommodation.
How all these things could affect me – it’s all pretty distal. I could, for example, start a small press (I’ve thought about it) or a small movie production company – because I’m aware of a few projects around the country that could use help that have something in common with what I do. As a small business – yes, unfettered Internet access from the public would matter (so net neutrality could matter). But the right to chose my own content to promote would matter. Publishers, and movie studios, like any content-oriented business, pick the content that they want to promote. “Property rights” is what allows them to do that (which they can’t do the same way in places like Russia and China, where the government demands the content producer serve some higher statist common good, just like movie studios had to during WWII). It’s all too easy, though, once I start selling to consumers with a store – what about providing for other kinds of consumers – like blind ones – that I don’t have the scale to serve. I’ve been pestered quite a bit in the past few years to become more involved with scalable operations – to the point that it jeopardizes my time to spend on content and research.
Supplementary legacy posting in network neutrality ending.
Supplementary legacy posting on Masterpiece Cakeshop and legally married same-sex couple in Colorado.
(Posted: Friday, December 8, 2017 at 11:30 AM EST)