10/16/2013 10:35 am ET Updated Jan 23, 2014

Keep Your Mitts Off the Internet

Pick your poison: Do you more object to Big Government or Big Business?

After all, neither of those two institutions gives us much reason these days to be particularly comfortable. And the collision, and need for choice, is staring us in the face when it comes to the Internet where the Federal Communications Commission, the keeper of our electronic media, is squaring off against the mega-companies -- Time-Warner, Comcast, Verizon -- that bring both television and Internet to most American homes.

The Internet providers want to establish what would amount to a two-tiered system of information delivery. If you pay more or if Big Business likes you, you will be in the fast tier while the rest of us would be relegated to the slow lane. The idea of what has become known as "net neutrality" would be out the window.

Thus, the exciting promise of this wildly democratic tube of information might disappear. The corporate hand would be allowed to make choices on who would be able to speak loudest -- or so it is feared. "One of the most important times ever for the FCC," declares Steve Wozniak. "It's probably the most momentous and watched action of any government agency in terms of setting our perception of whether the government represents the wealthy powers or the average citizen, of whether the government is good or is bad. This decision is important far beyond the domain of the FCC."

So important, in fact, that both sides of the political spectrum have jumped on the issue. The Republicans, as they shut down the federal government, made demands on the Obama administration, including, of course, their desire to kill Obamacare. But, oddly, in their list of demands was one that said the FCC must remove all rules that blocking Internet providers from messing with the spectrum.

Time-Warner, et al., the much-abused cable guys, insist they have no sinister motives. They do not want to dump political voices they don't like into the slow lane, nor do they want to punish anyone who might dare criticize the capitalists. (The guy who runs a Facebook site called "Time-Warner Cable sucks" will be glad to hear that!)

And, moreover, Time-Warner says -- in a lawsuit working its way through the federal courts and likely headed to the U.S. Supreme Court -- that the FCC, those five bureaucrats in in Washington, D.C., who oversee telecommunications policy, do not have jurisdiction over the International Network of Connected Computers that has become our World Wide Web of information. The Internet is private, not public, they insist, and keep your governmental hands off private property.

From a First Amendment perspective, this makes a lot of sense, unfortunately. A newspaper, a magazine and a cable wire coming into your house are all owned by private entrepreneurs. And the First Amendment guarantees that the government can't tell private people how they can speak (short of restraining threats to national security, incitements to violence and obscenity). So, the government does not have the right to rule the Internet, unless we somehow decide that all those various connectors and Internet lines (it is a complicated maze) can be viewed as public property or in a manner similar to the electric utilities which operate without competition but are tightly regulated.

It is an alluring proposition. I, for one, do not want the FCC meddling with the wildly anarchic and often very democratic discourse that takes place online. On the other hand, I don't trust the Time-Warners; they will act the way corporate behemoths always act. If it is in their political and economic interest, they will find a way to muffle voices that threaten them.

Of course, there is no evidence thus far that they have done anything that would fulfill the wildest fantasies of the "net neutrality" proponents -- that they have tried to mess with content in a way that favors their content and interferes with someone else's. That would be offensive, although arguably it might be constitutional.

So do we really need the government to regulate? Look at the history of American television. For the first four decades of TV, the government imposed strict rules. The Fairness Doctrine, for example, told the TV stations they had to present competing sides of a story. They were told they had to cover news in their communities. They were told to give anyone they criticized the chance to respond.

Then, as more stations became available with the birth of cable television -- I grew up with six channels in New York City -- the courts reasoned they did not have to force competing voices on any one channel because there would be plenty of chances for the other side to be heard. Just look at conservative Fox News squaring off now against liberal MSNBC. The Fairness Doctrine was lifted. Let the stations govern themselves, or as, the Reagan Revolution argued, just deregulate.

But now the debate has shifted: Do we need regulations to make sure Internet service providers do not take their grimy corporate hands and mess with content, or more likely, give preference to corporate high rollers while non-profit and resource-poor advocates get dumped in a less attractive tier? And wouldn't that just defeat the wildly democratic impulse of many voices competing?

Like so much of American discourse, the debate has become a conservative vs. liberal issue. Obama and the Democrats have promoted "net neutrality." The GOP, siding with Big Business, stands on the other side. Business has taken to the federal courts, insisting the FCC has no jurisdiction. They will likely win this round, and it could keep going to the top federal court -- or get thrown back to the FCC to flesh out new regulations that might pass constitutional muster.

The First Amendment is tricky doctrine. What it means most of all is that the government cannot tell you what you can say or write -- or think. (Although the NSA knows all of that anyway!) Underline government which has been repeatedly told it must be "content neutral" when regulating the speech of citizens. But nothing in the First Amendment's 45 words says that private entities -- Verizon and Time-Warner -- must be content-neutral. They can have an opinion, and they can decide, in theory at least, that they won't permit the voices they disagree with to speak on their channel.

If we truly had competition for the Internet providers, much would be different. I looked at my Time-Warner bill recently, and after taking anti-nausea pills, I bemoaned that I had little choice but to pay. I could go to high-speed telephone or try a satellite service, but it is hardly a real alternative. The cable companies get long-term contracts to bring Internet, and we are stuck with them. They are, in essence, like the electric and water utilities which have no competition - - but are strictly regulated by government.

So why can't we do the same with the Internet providers? Time-Warner is making lots of money; the tradeoff for them will be that to keep making that money they will have accede to reasonable rules of access and net neutrality like the modest ones that FCC imposed in 2005.

If I am picking my poison, I'll go with the government's FCC. Keep it simple. Make it clear this is not a precedent for any other rules. The Internet providers simply cannot regulate content. Everyone will remain in the same lane -- from the White House to General Electric to the little guy whose web site says he hates Time-Warner.