[governance] Net neutrality: Definitions

[Paul Lehto]

There's a "stress test" called the "void for vagueness" doctrine in
common law courts that strikes down statutory wording that is unclear
such that "the average person must necessarily guess at its meaning."
Counsel considering ways of defending their client's case can almost
always find a key phrase  and attack it as void for vagueness because
literally any term or phrase can be deconstructed with the result that
the contours of meaning made to seem unclear and/or incoherent at
best.  In this context, "public internet" is attacked and accused of
meaninglessness.

Most recently, the US Supreme Court struck down the term "honest
services" in reference to wire fraud, which had the effect of
reversing the convictions of Enron executive Jeffrey Skilling.  If one
considers that the opposite of fraud is honesty, this result is nearly
staggering, but it is instead a testament to the power to deconstruct
virtually any word or phrase.

Whenever void for vagueness doctrine in any form, or
meaning-stress-tests are applied, it's a way to kill whatever it is
applied to, IF there is the desire to kill it.

Similarly, someone else just said today that a "legally" acceptable
standard would have to be measurable.  This is definitely not true
throughout the common law, and I'd be surprised if it were true here.
If it happens to be true, wheover passed that statute or regulation
insisting on measurability did not wish to have "subjective" standards
in the law like "honesty", "that which would deceive a reasonable
person," "unfair business practices" and the like.

Paul Lehto, J.D.

On 8/16/10, Milton L Mueller <mueller at syr.edu> wrote:
[snip]
> Open internet doesn't advance the dialogue in any way I can see. It doesn't
> mean anything, as far as I can tell. But I am happy to receive a coherent
> definition. It will be interesting to see whether this definition, if
> subjected to the same "stress tests" as NN, provides a basis for reslving
> the regulatory disputes.
>
> --MM

-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-2334
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