The Enduring Threat of Net Neutrality

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary. – H.L. Mencken

No regulatory issue in memory has been quite like that of “net neutrality.” A solution in search of a problem, bankrolled and of early and particular economic benefit to two companies, and a regulation that threatens to give government sway over an industry where it had none before, network neutrality by regulation defies logic, history, and the way the world works. Other than that it’s one terrific idea.

Net neutrality was conjured up by an alliance of left-wing activists, Democratic commissioners of the FCC, and certain Internet companies and their trade associations. The regulations that followed have been on a devolutionary path, such that what was merely bad (net neutrality under Title I) became, in 2015, very much worse – net neutrality under Title II.
Among the several unique aspects of the net neutrality wars, perhaps the most significant is the fact that all of the ISPs are in favor of the concept. Indeed, their business models depend on it. This explains why there have never been any but the most trivial examples, and very few at that, of ISPs allegedly violating net neutrality.

Another distinguishing feature is the perfervid mindset, and resort to the most preposterous sloganeering (“Net Neutrality: The First Amendment of the Internet”), of its promoters. From the presumably learned (Tom Wheeler) to the crackpots (Free Press), comes a passion for the issue that smacks of the kind of fanaticism one would expect to see where a problem and its solution are things of such genuine importance they justify the most over-the-top words and tactics.

Not so net neutrality. Looked at in terms of its practical effects, Title II regulation will cause ISPs to not do precisely nothing that they wouldn’t have done without Title II. Which is not the same thing as saying Title II won’t have any effects. It will. It will invite future (Democratic) majorities at the FCC to use their leverage over the ISPs (with the implicit threat of rate regulation) to coerce practices that, sooner or later, will impinge on content. And it’s this, the threat to First Amendment values that, if the current regulation is not removed or amended, will be the hallmark of net neutrality.

Consider the warning issued by Laurence Tribe and Thomas Goldstein, in a paper they wrote in 2009:

Net neutrality proposals rest on the mistaken premise that the Constitution gives the government a role in ensuring that the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers. In fact a central purpose of the First Amendment is to prevent the government from making just such choices about private speech, including decisions about what amount of any given kind of speech is optimal.

Like Floyd Abrams, whose unforgivable sin among progressives was to argue (and brilliantly) that Citizens United was unconstitutional, Tribe was criticized for his take on net neutrality. Consider, for instance, Columbia Law professor Timothy Wu, widely acknowledged as one of the leaders, if not the leader, of the net neutrality brigades. In 2015, Wu wrote in The New Yorker an article titled “Did Laurence Tribe Sell Out?”

Reminiscent, minus the eloquence, of Mark Antony’s funeral speech (“…and Brutus is an honorable man….”), Wu questioned, in the pose of a sympathetic inquiry, if Laurence Tribe had damaged his credibility by representing a number of corporations, including Time Warner Cable, for whom Tribe co-authored the 2009 piece. Quoth the Wu: “Tribe’s corporate work has created skepticism about where his views come from, even if they are sincere (which I believe they are), and this is what is creating the reputational damage.”

From the beginning, and to this very day, the Big Lie propagated by net neutrality’s promoters is that absent Title II regulation the cable and phone companies would discriminate against smaller and newer companies, favor their own competing content, and thereby “kill the Internet as we’ve known it.” It was a bad joke from the beginning and it’s even less funny now.

By all indications, FCC Chairman Pai and the other two Republican commissioners intend to eliminate Title II regulation perhaps as early as this year. In fact, it will be a simple thing for them, or any future FCC to do – in or out, depending on the majority of commissioners in place.

Which is why, when the dust settles after repeal and all the subsequent lawsuits have been resolved, there may then arise within Congress a genuine interest in finding some legislative solution that all parties can live with, and that comports with the spirit of the First Amendment.


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory council, or contributors. This article appeared here in the Daily Caller on Oct. 10, 2017.

Keep Big Bird, Ditch the News: A Path Forward for PBS With Budget Cuts

As was the case a half-dozen years ago, PBS and NPR are again the subject of a contentious debate about their taxpayer funding, this time courtesy of President Trump. The problem with that debate, then and now, is that like so many policy disputes, the arguments employed oversimplify the facts and ignore the obvious. I wrote about this matter in 2011 in a piece published in the now-defunct app called The Daily. What follows is an update of that piece.

For years, Republicans and conservatives have accused NPR and PBS of ideological and political bias. Things came to a head in 2010 when NPR fired Juan Williams as a commentator for allegedly making anti-Muslim remarks, and NPR successfully solicited funding for local reporting from a foundation controlled by the uber liberal George Soros.

This perception of bias would be noteworthy enough even if these broadcasters were not financially supported by taxpayers, conditioned on explicit statutory language requiring objectivity and balance. Since, however, they are, the ubiquity and durability of this perception becomes very nearly miraculous. Surely it’s not easy to so thoroughly offend one of the two major parties that, in the House vote in 2011, virtually every Republican member voted to defund NPR » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors. The full version of this article appeared in The Hill on March 21, 2017.

In ‘Media vs. Trump’ Battle, the President Has the People on His Side

It’s safe to say that nobody alive today has ever seen anything like it: A newly elected president who, so far from being a professional politician, says off-the-cuff things in conversation or midnight tweets that positively invite indignant responses – and a media and entertainment industry that has been loudly marching against him ever since he won the nomination.

The consuming question in these parts is less how it began than how it will end, and with what consequences. It’s pretty clear now that it’s open warfare between the White House and the mainstream media (MSM) – the New York Times, Washington Post, and CNN in particular – and Hollywood.

Of course it could come to an end with a kind of detente with no clear winner, but that seems unlikely given the hubris of the combatants. So it probably comes down to one of two results: (1) The president is undone politically by GOP defections or through impeachment proceedings; or (2) Trump and his supporters engineer an anti-media campaign with teeth, causing the media to back down.

Everyone is familiar with the practice of activists harassing advertisers, starting letter-writing campaigns, picketing the homes and offices of businesses and executives, and promoting boycotts » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on March 2, 2017.

Trump Continues To Make the Media and Hollywood Dance to His Tune

It would be amusing if it weren’t so serious.

Seemingly incapable of letting pass even the most trivial challenges, like the media’s invidious comparison between the size of the inaugural crowd and the numbers assembled for the so-called Women’s March on Washington, President Trump responds with a claim that not only can’t be corroborated but is plainly false. He responds similarly to the tiresome and sophomoric criticism of him by Meryl Streep, with the claim that Ms. Streep is an “over-rated” actress.

And he suggests, as an explanation for why he lost the popular vote, that it was because 3 million people voted illegally, rather than the much better explanation that he didn’t even bother to campaign in states like New York and California, where he knew he couldn’t win the electoral vote, and where, as with California’s strange election laws, there wasn’t even a Republican on the ballot for the open Senate seat.

But for all the president’s foibles, it’s the post-election breakdown of the media and entertainment industries that is the most revealing and the most disturbing.

The beginning of wisdom in understanding why this is of such importance is in knowing that the vast majority of Americans » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on Feb. 8, 2017.

Donald Trump and the Future of the Mainstream Media

The presidential election has lit a fuse on discussions about the present and future of the mainstream media (MSM). Opinions are hot and heavy, and predictable for the most part according to the political mindset of the commenter.

Some people, for instance, attribute Trump’s win to the media’s extensive coverage of him during the primaries, while others see the influence of so-called “fake news” as a factor. People of these and kindred opinions tend not to see, or acknowledge, any significance in the election results for the future of the MSM.

Other people think that Trump won precisely because he characterized the media as being part of the “corrupt establishment,” with Michael Wolff, for instance, writing in the Hollywood Reporter that the election was not between the Republican and Democratic parties but between the Trump Party and the Media Party. As Wolff puts it, “The media turned itself into the opposition and, accordingly, was voted down.” Many such people, Wolff excluded, tend to see (indeed, hope for) a dismal future for the mainstream media.

Yet other commenters see in the election results the damaging effects on the MSM and the country as a whole of the social media, » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on Jan. 6, 2017.

Jeff Bezos Owns the Washington Post – and the Journalism It’s Practicing

The Washington Post has for years been a newspaper that favors Democrats and liberalism generally. This has been seen in the kind and quality of issues covered, and not covered, in its feature and investigative stories, and in its editorials. But not until this year has the paper so grossly abandoned the practice of separating news from opinion in its news stories.

And that is something that, for all his distractions and grandeur, the Post’s owner, Jeff Bezos, must now correct — that or he needs to accept personally the decline and opprobrium that is coming the Post’s way.

Under normal circumstances the owner of a media company is best advised to steer clear of editorial matters, but that won’t work at the Post any longer. It’s become obvious that, with the election of Donald Trump, none of the editors at the paper can be trusted to uphold even the most basic of journalistic standards.

This has been true since Trump first announced his candidacy, but it has escalated gruesomely since his election. Witness, for instance, what is perhaps the shoddiest piece of feature writing since Rolling Stone published its blatantly false story about a campus rape at the University of Virginia. » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on Nov. 29, 2016.

The Biggest Loser in 2016? The Mainstream Media and Journalism

There are many losers in the wake of Donald Trump’s victory. They include Hollywood, pollsters, the Bush family and the GOP’s donor class, and neocons. But the biggest losers are the mainstream media (MSM) and journalism itself.

And it’s the damage done to journalism, not the fate of pundits or media outlets, that is the most disturbing. After all, it’s been reported for years that Republicans and conservatives in ever larger numbers deem the MSM to be in the Democrats’ and liberals’ corner, and if that perception is okay with media moguls it’s their choice to make — and to live with the consequences in the marketplace.

But when, as happened this year, so much of the media openly and willfully suspended the practice of separating news from opinion, they crossed a boundary of what’s rightly theirs and what’s ours. It’s our right and need to know about civic matters, fully, fairly and accurately, that is the public virtue in journalism and the sine qua non of democracy.

Although virtually all of the MSM violated this boundary in their frantic support of Clinton, some were worse than others. As is often the case, CNN led in this category, » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on Nov. 15, 2016.

Conservatives Could Be Trump’s Biggest Fight

As the mainstream media pillory Donald Trump, and in doing so reveal the hypocrisy lurking in their news standards, Trump’s supporters find themselves caught between the rock of the MSM and the hard place of the conservative intelligentsia. And it may be the latter that are doing the most damage.

Because academia and the legacy media are so hostile to them, intellectuals of the right have for years congregated in think tanks and publications. Places like the libertarian Cato Institute, the conservative National Review and the Wall Street Journal, and the neoconservative Commentary (and more recently the Weekly Standard) have incubated and nurtured some of the best pundits and policy analysts in the country.

Yet today, not one of them supports Donald Trump’s candidacy, and several (particularly the neocons) are in full-throated opposition. Taken together, these “Never Trumpers” fault the GOP nominee for his stands on immigration and international trade, for his personal style, and for his lack of familiarity with, much less fealty to, conservative policy positions.

In other words, they have their reasons. Yet for all of that, there’s a look and feel about their efforts that smacks of vanity. Sadder still, their collective posture reveals an embarrassing lack of discernment » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on Aug. 31, 2016.

Defending the Indefensible: Bias at the New York Times

The New York Times’ media columnist, Jim Rutenberg, penned a recent piece suggesting that biased news coverage of Donald Trump, at the Times and among other mainstream media, is justified and rarely observed in the context of other partisan or ideological issues.

Rutenberg’s claim is that because Trump says things that are rude, politically incorrect, or debatable, and “conducting his campaign in ways we’ve not normally seen,” there is no need for news reporters to treat him to objective reporting.

As the gentleman puts it: “It may not always seem fair to Mr. Trump or his supporters. But journalism shouldn’t measure itself against any one campaign’s definition of fairness. It is journalism’s job to be true to the readers and viewers, and true to the facts, in a way that will stand up to history’s judgment. To do anything less would be untenable.”

So … by this standard, which has been honored more in the breach than the observance by the Times for years, Rutenberg justifies the open vilification of Trump’s statements in things written not just by opinion writers but by reporters as well.

It’s as fine a piece of hypocrisy clothed in “journalistic idealism” as you’ll ever see, » Read More


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on Aug. 15, 2016.

Obama’s Legacy: The Trashing of Free Speech

No administration in memory has more thoroughly undermined freedom of speech and of the press than that of President Obama.  From the White House itself, as well as the independent and executive branch agencies, have come a steady stream of policies, initiatives, and pronunciamentos that have threatened or compromised both of these constitutional rights.

Indeed, the Administration’s example has inspired like-minded actions outside of the White House.  For example, those Democratic members of Congress who actively encouraged IRS action against conservative nonprofit organizations before Lois Lerner turned to the task.

And the 16 state attorneys general, Democrats all, who have recently embarked on a campaign designed to silence people who are skeptical of the evidence of anthropogenic global warming and/or its effects and remediation.

But it’s the example of the Administration itself that is most notable.  Who could forget the performance of then-UN ambassador Susan Rice who, five days after the Benghazi attack that took the life of the American ambassador, went on national TV and blamed the attacks on an anti-Islam video shown on YouTube?

This followed by two days Secretary of State Hillary Clinton’s similar claim, and all of it despite the fact that senior Administration officials knew at the time that Benghazi was a premeditated attack that had nothing to do with the video.  >>Read More

Maines is president of The Media Institute.  The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on July 13, 2016.