Patrick Frey, aka Patterico, and I appear to agree on several things when it comes to government’s role, if any, in assuring freedom of speech by promoting an open Internet. This is progress.

(If you’re spending your valuable time following any of this, here’s his first attack post; then my reply; and now his further response.)

We agree there is currently no genuinely free market in providing Internet access. We agree that it would be great if a free market did exist, and support various measures that would help get us there. And we agree that government, in the form of the Federal Communications Commission, has behaved badly in the past. There’s more, but those are the highlights.

We continue to disagree, firmly, on whether government can play a positive role in helping to ensure free speech on the Internet. Frey is convinced that the FCC’s recent net-neutrality decision is the proverbial camel’s nose under the tent, and that’s that, it seems. In his view, I’m naive to believe it could possibly be different.

Read the hard-core libertarian language in his post to understand where he’s coming from. He loathes government in just about every way. Consent of the governed, he says, is meaningless in modern America (bold lettering in the original):

Fuck this notion that we are the government and the government is us. That is total bullshit. We are the ruled. Period. End of story.

So what is the way forward for Frey? Naturally, the free market, full stop.[1. I like a lot of what libertarians say, but their free-market philosophy seems to go something like this: There’s really no such thing as a monopoly. Even if there is, the market will cure it. Even if the monopoly is so entrenched that the market takes decades to respond, that’s not our problem. Even if the market never responds, we’re all dead in the long run.] Not that we have one or, given the political system he believes we have, any possibility of one. And I’m naive.

Frey would have you believe that our conversation boils down to this basic–though profound–disagreement:

[Gillmor] trusts government. I (Frey) don’t. He thinks government will “forbear” from exercising powers that it can get away with exercising. I don’t. He thinks government getting its mitts on a part of the Internet will improve our lives. I don’t.

Anyone who’s read even a tiny amount of what I’ve written for, oh, the past 20 years or so is surely aware that I do not trust government as a general rule. I don’t trust Big Government, Big Business, Big Anything. I do leave open the possibility that they can (and sometimes do) get it right. This isn’t because they tend to do things based on good will, though sometimes they do. It’s more often because countervailing forces, such as voters, courts, customers, etc., can apply enough pressure to get a better outcome.

We may well need those countervailing forces–checks and balances–in a Title II future, because no one in this debate, least of all me, thinks the FCC’s action was the perfect solution. Its net neutrality ruling was distinctly less bad than the alternative it was floating earlier: handing control over the Internet’s key on-ramps to the rapacious telecommunications cartel that has demonstrated its unfitness to have such control.

We were heading toward control of speech by a cartel that, being businesses, have zero First Amendment obligations. Frey says we’re heading toward control of speech by a cartel of bureaucrats. Because, you see, since the FCC did it with broadcast, they’ll do it with the Internet.

Government, unlike business, actually does have some First Amendment obligations. And the Internet could hardly be more different than the broadcast system that the FCC did regulate poorly in the bad old days. 

The Supreme Court has weighed in, firmly, on the issue of whether the Internet is like broadcast, which was heavily regulated on the (increasingly specious) principle that the airwaves were scarce. Not even close, the court said in a key 1990s ruling about the “Communications Decency Act, which the court mostly tossed out as violating the First Amendment. (I appreciate the reminder of the CDA ruling from Seth Finkelstein, a longtime correspondent, and critic, who has persuaded me I was mistaken on more than one issue over the years.) Key language:

[U]nlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low cost capacity for communication of all kinds. The Government estimates that “[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999.” This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.” 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

Maybe some future Supreme Court will totally abandon us, and decide that tight regulation of Internet speech is constitutional. If so, the United States of America, and the Bill of Rights, will have long since become just meaningless ideas. For now, I’ll give some trust to a system where we still have some checks and balances–and work hard to hold Big Government and Big Business accountable. If that makes me terminally naive, so be it.


Patrick Frey, who blogs and tweets under the pseudonym Patterico, picked an odd fight yesterday over what should have been a simple disagreement. In the process he made false statements about what I want to see in telecom/media policy.

First, though, here’s where we do agree: The FCC’s move to reclassify Internet service providers as common carriers could have negative consequences. If Frey posted that on Twitter, I’d retweet him in a heartbeat.

While I support the commission’s decision, have argued for it, and have publicly worried about the potential unintended consequences, I don’t assume these consequences are inevitable. Frey does. But to make his point, he resorted to tactics that surprised me, given my prior respect for his work.

He’s blogged about all this at, in a tendentiously titled post that extends his original false claim. I’m responding to the central points in that blog post, not the irrelevant personal stuff or the “nuance-free slogans and analogies” he barraged me (and his followers) with on Twitter, which once again demonstrates its unfitness for serious conversation. Read it and come back. I’ll wait.

For those of you who didn’t read his post, here’s how Frey picked the fight. A blog post by news industry analyst Ken Doctor about plunging single-copy sales of newspapers led me to tweet that by drastically hiking prices of single copies, newspapers had found a new way to commit suicide.

This led to Frey’s opening salvo:

.@dangillmor Final blow for newspapers: they increasingly rely on the Web, and people like you want the government regulating it. @kdoctor

— (@Patterico) March 14, 2015

There are only two rational ways to read this. 1. I want the government to regulate the Web, and by extension what people post on it. 2. I want government to regulate the Web, but I’m too dense to understand what that might lead to. From his later statements, I gather that he meant the second interpretation. Both are false (never mind conflating the Web and the Internet, which as you’ll see below he did correct). Since I write publicly about telecom policy, and since I’ve respected Frey (and said so in my book We the Media a decade ago), I was flabbergasted.

(I called his tweet a lie, and said I was surprised that he would say such a thing. As he has pointed out, a lie is a deliberate, knowing falsehood. Since I can’t read his mind, I’ve retracted that word. I’ll stick with “false” to describe what he wrote.)

Here’s the meat of Frey’s blog post (bold text in the original):

  • Newspapers are increasingly reliant on the Internet to communicate with their audience.
  • The FCC this year is assuming regulatory control over the Internet.

Seeing those two facts together should frighten all Americans. With the death of newsprint, the federal government (under the guise of Net Neutrality, which Gillmor supports) is putting regulatory control over the new printing press — the Internet — in the hands of the Federal Communications Commission.

Is the Internet the new printing press? Sure, and a lot more. Is the FCC assuming regulatory control over the Internet? It is asserting regulatory power over one (relatively) small part, in a small but crucial way. It is working to ensure that the people who create media and other services, using that printing press and other tools, are treated fairly by the cartel of corporate giants that has taken unprecedented control–over how what we create may (or even will) be seen by others who want to see it.

The promise of the Internet “network of networks” was in its radical decentralization. Innovation and true freedom of expression would originate at the edges of those networks, where we wouldn’t need anyone’s permission to innovate or speak because we were free of centralized control.

The corporate giants that control most of the on-ramps to the fabled information superhighway want the right to decide what bits of information get delivered at what speed and in what order, or if they’ll get delivered at all, to those of us requesting the information. And they insist they’d never, ever abuse that control. (They already have.)

Big Telecom doesn’t operate the 21st Century printing presses. You and I do. Big Telecom isn’t the Internet; it is part of the Internet. But it has become the antithesis of the Internet’s promise–a centralized choke point.

The FCC’s Title II decision recognizes the choke point for what it is, and attempts to mitigate the worst effects. The ruling says, essentially, that we–you and I, at the edges of the network of networks–should decide on our own priorities for what we access from digital networks. It says the centralized cartel shouldn’t make those decisions for us.

Frey hearkens back to the early days of the FCC and its subsequent control over broadcasting to frighten us with the specter of FCC Internet content regulation, citing the commission’s pernicious (we agree again!) regulation over broadcasters’ content through the decades. If there was ever a need for policing televised wardrobe malfunctions in an era of government-limited broadcast outlets–there was not, in my view–it ended when the Internet gave us, in theory, unlimited multidirectional channels of communications.

But Frey, citing a slew heavy-handed government threats and actions against broadcasters, predicts the same is in store for the Internet as a result of Title II reclassification. He’s saying, This is what governments do, and it’ll happen again. (He mistakenly says the FCC has turned the ISPs into utilities, when in fact they’ve been reclassified as “common carriers”–the difference is important and highly relevant in this debate.)

Frey’s argument is a bit like saying government regulations about auto safety, such as requiring seat belts, is just the first step toward the government deciding precisely where you can drive. I suppose that’s possible, but one doesn’t inevitably lead to the other.

Governments don’t always go too far. When they’re “of the people, by the people, for the people,” we have a say in what happens.

The nation’s founders had the right idea when they established freedom of speech, freedom of the press, freedom of assembly, freedom of religion and more in the First Amendment. America hasn’t always lived up to these ideals, which are always under attack from people and organizations who worry about too much freedom. But the FCC decision on net neutrality very much honors the founders’ intent.

The FCC has explicitly said it would apply forbearance (a key word in the legal and regulatory arena), making clear in the rules what it won’t do–which covers the parade of horribles even supporters of Title II fear. (Here’s a Q&A that explains the concept.) And never mind that the public is getting better at understanding what the Internet is and how it works–not to mention increasingly wary of centralized power and downright allergic to government control of what we can read or write.

There’s one bit of forbearance I wish the FCC hadn’t done, in what’s called “unbundling” of the last mile (to our homes and businesses). Given the monopoly/cartel nature of the staggeringly profitable ISP business we’d have been better off if the commission had required the ISPs, particularly the cable companies, to let other companies create ISPs on “their” lines. (Unbundling, by the way, has a track record in several other countries. It’s not the answer but it can help in the short run.

This is exactly what our oppressive government did in the early days of the public Internet. In the 1990s there were thousands of small ISPs competing for our business on wired phone lines. The phone companies were not permitted to discriminate against them, because they were common carriers. And the Internet took off in large part because there was vast, and valuable competition for our business, something the anti-net-neutrality forces never seem to remember.

On one other key point, Frey and I agree entirely, even if we’d undoubtedly get there by different routes: the best fix to this situation is competition. There is a small amount of competition now, but the overall American “broadband” marketplace is a parody of genuine capitalism.

The dominant ISPs got where they are because the marketplace was rigged in their favor. They built “their” networks on the backs of government-granted monopolies in the first place. Then they leveraged their built-in advantages–including cozy deals with various governments–to create a cartel that will be immensely difficult to dislodge, though we should keep trying.

Here’s how we could have genuine competition, or move closer to it:

  • Require monopoly/oligopoly businesses created through special favors to then make their facilities–lines, towers, etc.–available to competitors until such time as there’s actual competition for what they do;
  • Require communities to make their rights of way accessible to all competitors, which would help create the conditions for competition, though it wouldn’t undo the unfair advantages the cartel already possesses as a result of its monopoly days;
  • Forbid state governments from preventing municipalities from installing publicly owned broadband networks (the carriers have “persuaded” lots of state governments to enact competition-killing rules of this kind, and the FCC’s latest rules wisely pre-empt such laws);
  • Free up vastly more unregulated spectrum–ideally created from the airwaves we unconscionably gave to the national and local broadcasters–letting competition emerge there the way it did in wi-fi;
  • Promote, in that spectrum, the promising area of “smart radios,” recognizing that there is a spectrum “shortage” caused by “interference” largely because traditional radios have been so inefficient;
  • And make many other moves aimed at creating the conditions where genuine competition can emerge and thrive.

The chances that the telecoms and their owned-and-operated legislatures would allow actual competition are close to zero. If the opponents of net neutrality really believed in competition, they’d push for something like this. I’m not holding my breath.

Meanwhile, I’ll settle, with misgivings, for Title II. And, working with the enormous group of pro-net-neutrality folks who’ve demonstrated expertise and good will on this issue, I’ll do my best to see that it doesn’t boomerang on all of us. Fear-mongering, even if it’s well-intended, won’t help anyone.

(Note: I’ve updated this post with several small tweaks.)

In the Atlantic, I look at Twitter’s entirely reasonable decision to remove the James Foley snuff videos — a decision not to allow murderers to use the service for their PR. But, like others who’ve sounded off on this in recent days, I have major misgivings.

My deepest misgivings are less about Twitter’s (and Google’s and Facebook’s, etc.) right to be editing what’s posted. They’re about the power these services are accruing over online content.

Excerpt from the Atlantic piece:

Who gave them this power? We did. And if we don’t take back what we’ve given away—and what’s being taken away—we’ll deserve what we get: a concentration of media power that will damage, if not eviscerate, our tradition of free expression.

Let’s wake up, and re-decentralize the Internet, before it’s too late.

I’m delighted that the folks at the great Highway Africa conference asked me to be a keynote speaker next month. I’m very much looking forward to returning to Rhodes University in Grahamstown, South Africa, to see old friends and meet people who are helping to transform media and journalism.

This will be my fourth time at the conference. The last time was in 2010, when the conference coincided with the World Cup. My first time was in 2001; I was in a car, heading back to the airport in Port Elizabeth, when we got a call from one of the passengers’ colleagues, telling him that an airplane had just crashed into the World Trade Center in New York.


For more than a decade after the 9/11 attacks and America’s sometimes criminal response — torture, perpetual imprisonment, kidnapping, pervasive surveillance and more — the New York Times and almost all other American news organizations demonstrated journalistic cowardice on an epic level. Most served as cheerleaders for a war that was launched under false pretenses. Some withheld news of surpassing importance.

And, almost universally, they refused to call torture what it is, substituting language like “harsh interrogation methods” for this evil and flatly illegal practice.

The New York Times has decided, at long last, to tell the truth about torture, at least in future news columns. (Its editorial page has, for some time now, been calling torture what it is, for which it deserves kudos.)

But in explaining this move, the Times’ editor, Dean Baquet, only compounds the damage, by holding to the fiction that there was any remote justification for the paper’s years of craven kowtowing to White House and other (mostly) right-wing bullying. Baquet wrote:

While the methods set off a national debate, the Justice Department insisted that the techniques did not rise to the legal definition of “torture.” The Times described what we knew of the program but avoided a label that was still in dispute, instead using terms like harsh or brutal interrogation methods.

The “dispute” was a concoction. It was a deliberate propaganda ploy by a government that relentlessly lied about its methods and motives.

Our news media bowed to the Bush administration’s Orwellian insistence that the United States wasn’t torturing people, even though this was one of the most wanton lies. America had even convicted others of war crimes for some of these same acts, but that went down the memory hole.

Cowardice alone doesn’t explain the news media’s continuing failure on torture. Washington journalists’ penchant for stenography over actual journalism — and the lazy, pernicious “report both sides of the issue” (even when one is lying) methodology of modern political and business reporting — has been part of the problem. What Jay Rosen and others have called the “view from nowhere” has given us “journalism” instead of the real thing, and I’m sad to say it’s still the rule rather than the exception among people who continue to choose access over honor.

The New York Times is doing the right thing by deciding to tell the truth in the future. But, sadly, Baquet’s explanation is no less craven than what his colleagues have been doing for years.

He, and the Times, would earn a lot more respect if they did something simple, right now: Apologize.


It’s not too late to send a comment to the FCC regarding its moves toward creating a “fast lane” on the Internet — thereby handing control over innovation and speech to a tiny group of corporations that have amply demonstrated their intention to abuse it. I discussed much of this in my new Guardian column this week.

And here’s what I sent to the FCC separately:

Please reclassify ISPs as common carriers under Title II, with an exemption for small wireless providers.

It is unconscionable for the FCC to permit the monopoly/oligopoly ISPs — specifically the cable and phone companies (the latter via newer fiber deployment) — to decide what bits of information reach end users’ devices in what order and at what speed, or even whether the information reaches them at all. The ISPs insist they will not abuse this power, but there is no record of monopoly/oligopoly businesses NOT abusing power.

It is even more unconscionable that the telecom companies take this position even though they were built initially on the backs of helpless customers who had no alternative to the carriers’ government-granted monopolies.

In addition to Title II reclassification, the FCC should pre-empt all state and local laws forbidding ISP or other telecommunications competition from the public sector. The carriers’ successful lobbying to prevent this kind of service is testament to their anti-competitive motives.

The future of American innovation and free speech could well depend on your decision. Please make the right one.