08/05/2008 05:12 am ET Updated May 25, 2011

Subcontracting the First Amendment

The FCC arguably holds the ears and eyes of American citizens in a kind of public trust, yet over the course of the years the Commission has slowly betrayed that trust by trying to make itself into something more; it wants to be America's morality czar.

The fundamental disconnect between the FCC's official mission and its self-appointed quest as champion of "clean" content traces back the U.S. Supreme Court ruling in the Pacifica case. And although Pacifica's relevance in today's media landscape is seriously in question, the Commission acts as if its tenuous role as prime time gatekeeper has matured and muscled up to meet the challenges of an "always on" media world.

The most recent example of the FCC's hubris is revealed is a proposed new rule, which would create a free nationwide, broadband wireless network that also must be "porn free." Whatever that means. But the proposed rule then goes much further, requiring blocking or filtering of all text or images that might be "harmful" to a five-year -old.

You read that right; the FCC wants the content level of this new network to have all the intellectual firepower of a kindergarten classroom. This proposal is a constitutional train wreck, a fact that will likely be pointed out in the avalanche of paper the FCC will receive today, which is the deadline for public comments.

OK, so how would this work in practice? Companies would compete for the spectrum, agree to use part of it for a free stripped down broadband service and develop the rest for a more robust commercial broadband service. Those who can afford to pay for the commercial service would be allowed to keep their First Amendment rights. Those who could not would hand their rights over to the broadband operator who would -- under government order -- reduce access to content acceptable to an audience comprised of five-year-olds. You read this right: the FCC essentially subcontracts the subversion of First Amendment rights to an independent contractor. I couldn't make this stuff up.

There has been some talk that in order to avoid any constitutional hurdles the FCC would allow its filtering mandate to be an "opt-out" or "opt-in" choice. That route only complicates matter. Any adult that wanted to opt-out of the filtered network could sign up to an "adult content access list." Seems benign at first blush; it isn't. First, there is the possible chilling effect of having to sign up for a nationwide, "adult content list." Since the service will be aimed at the content needs of five-year olds, you would have to sign up for "adult" content if you wanted to read the news. In addition, under the First Amendment the government cannot force people to "sign up" to a list in order to receive lawful speech. Similar reasoning applies to the opt-in approach.

It's not just the rights of the network's customers that would be trampled in this crazy scheme. The service provider charged with implementing this constitutionally suspect scheme would have to assemble a government mandated "black list" of content to be blocked, thus raising the specter of unconstitutional prior restraint.

There is no question that the First Amendment doesn't allow the FCC -- or any entity acting under an FCC mandate -- to function as an Internet board of review. The real question is why would such a proposal even be put out for comment. If the FCC is serious about encouraging broadband deployment to the underserved, it needs to get out of the censorship business and put the spectrum out for bid unencumbered by unconstitutional mandates. Even a five-year old can figure that out.