So back in October, we noted how FCC Commissioner Mike O'Rielly attended an event where he falsely claimed that towns and cities that decide to build their own broadband networks (usually due to market failure) were somehow engaged in an "ominous" assault on free speech. The only "evidence" O'Rielly provided was that community ISPs include language in their terms of service preventing users from being hateful shits online, the same exact language you'll find in the TOS' from any number of private ISPs, from Comcast to AT&T.
There's absolutely no evidence that any of the 750 towns and cities that have tinkered with this idea ever trampled anybody's free speech rights.
Yet after being criticized by several press outlets (including this one), O'Rielly apparently decided his best bet would be to... double down on his false claims. In a new blog post over at the FCC website, O'Rielly again tries to insist that community broadband is a giant threat to free speech, but this time he attempts to vastly expand his argument in a bid to make it sound more logical. The tap dancing around his lack of evidence in his original claim is particularly amusing:
Bizarrely, my critics further responded that I had failed to provide historical “evidence” of First Amendment mischief by muni networks. Perhaps they were confused about how a constitutional violation works. A state action or law can violate the First Amendment as applied or on its face. In the case of the latter, the law or act is always unconstitutional, and in the case of the former, it is only unconstitutional to the extent of a particular application. My argument was not based on as-applied historical instances of censorship, but on facial grounds. That is, certain terms in the muni broadband codes I cited facially violate the First Amendment.
That's a misdirection and a dodge, though putting evidence in quotes is a nice touch.
O'Rielly's right on one point: some fully government-owned community ISPs could face legal challenge for trying, as government operators, to censor hate speech via mouse print. As government operators, community ISPs actually have a greater Constitutional burden to avoid censoring content online than their private counterparts (a major reason, you'll note, that none have actually tried). That said, as local operations that have to be voter approved, community ISPs also have more direct accountability to the communities they serve. Certainly more than a company like Comcast or AT&T.
O'Rielly's problem is he then takes his core tenet to make a false claim: that because some community ISP mouse print isn't legally sound, allowing community broadband to exist threatens free speech. Recall, O'Rielly's original speech argued that these ISPs have "have engaged in significant First Amendment mischief." And again, that never happened. It might also be worth noting that one of the ISPs O'Rielly singled out was Chattanooga's EPB, the government utility and broadband ISP Consumer Reports just rated the best broadband provider in America. Throughout eighteen paragraphs, O'Rielly still can't provide a single instance of hard evidence to support his original claim.
There's also a lot of components to the community broadband conversation O'Rielly's rambling post makes it clear he'd rather not talk about.
The biggest thing O'Rielly would prefer people not understand is that community broadband is an organic response to market failure. It's a group of angry voters, after decades of being ignored by private ISPs like Comcast, deciding to either build a broadband network themselves, or strike a public private partnership with a company like Tucows or some other private operator. Obviously giant, entrenched incumbent ISPs have never much liked this threat of added competition. Neither have the lawmakers and politicians that generally act as a rubber stamp to those interests.
As such, demonizing such operations as "government run amok" -- as opposed to real human beings with legitimate grievances expressing their democratic rights -- has long been the fashion trend among folks like O'Rielly. And you certainly shouldn't point out to O'Rielly that studies show such community-run networks tend to offer better service, lower prices, and more transparency in billing than most incumbent ISPs. Dismissing this entire trend as "a perverse form of socialism" shows a painful misunderstanding of what's actually happening.
And the biggest thing O'Rielly would rather nobody talk about is his and Ajit Pai's proposed "solution" to this "problem": protectionism. For the better part of two decades, ISPs have literally written and purchased more than 21 state laws that either outright ban, or greatly hinder, the ability for towns and cities to build their own networks or strike creative broadband solutions like public/private networks. Both Pai and O'Rielly have breathlessly supported such laws, in pretty stark contrast to traditional Conservative claims of adoring "state rights" and disliking unnecessary regulatory market intervention.
Again, O'Rielly's just engaged in fear mongering in a bid to scare folks away from an organic, democratic response to community anger. Communities aren't getting into the broadband business because they think it's fucking fun, they're doing so because of market failure. If ISPs want to stop the rising tide of community broadband, the solution is simple: offer better, cheaper, more widely available broadband. They don't want to do that, so instead you get ample misdirection from the issue at hand, and a bizarre demonization of folks who are actually trying to fix the problem.