• by Wendy Davis  @wendyndavis, December 10, 2009

In its latest bid to nix net neutrality regulations, the National Cable & Telecommunications Association is arguing that such rules would violate free speech principles.

"It should not be lost on anyone that the strongest and loudest voices for net neutrality rules often cloak their agenda as advancing the First Amendment," NCTA President Kyle McSlarrow said this week in a speech at the Media Institute. "But urging the government to impose rules that supposedly promote First Amendment values is too often used to justify regulations that instead threaten First Amendment rights."

The Federal Communications Commission voted in October to consider enacting neutrality regulations that would ban ISPs from discriminating against lawful content or applications.

McSlarrow says that such rules would amount to a form of "forced speech." Courts have held that laws requiring people to speak -- such as mandates that students salute the flag -- are as unconstitutional as laws banning people from expressing unpopular opinions.

"Almost every net neutrality proposal would seek to control how an ISP affects the delivery of Internet content or applications as it reaches its customers," McSlarrow argued.

Not surprisingly, net neutrality advocates disagree with McSlarrow's interpretation. "Cable companies are not school children," argues Marvin Ammori, a University of Nebraska law school professor who advises Free Press. "Imposing a nondiscrimination rule on a basic infrastructure like the Internet is not akin to forcing a child to violate her religious beliefs."

McSlarrow also proposed that any rules preventing ISPs from prioritizing certain traffic would affect content providers' free speech rights by hindering their ability to offer high-definition video, games or other high-bandwidth material. "It may be entirely too costly (as well as unnecessary and inefficient) to offer the same quality of service that a video game service requires to every single content provider," McSlarrow argued. "And so the effect of such a rule would be simply to prevent the offering of services consumers might want that require such enhancements."