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[1.] Alice is burning an American flag in a public place. Some people threaten to attack her if she doesn’t stop. A police officer therefore orders her to stop: “It’s my job to preserve the peace, and prevent fights and other disruptions. Your symbolic expression is causing such disruption, so it’s no longer protected by the First Amendment.”

Unconstitutional, the Court would say (at least unless her speech consists of personally insulting and individually targeted “fighting words,” or is intended to and likely to produce imminent violence): That would be an impermissible “heckler’s veto.” In the words of the Court in Forsyth County v. Nationalist Movement (1992),

Speech cannot be financially burdened, … punished[,] or banned[] simply because it might offend a hostile mob.

Nor does it matter that the police officer (unlike the hostile mob) may be sincerely concerned about the harmful consequences of the speech, rather than motivated by ideological opposition to the speech. The government must bear the cost—which may be a substantial cost—of allowing the speech, protecting the speaker, and (if necessary) prosecuting anyone who attacks or threatens to attack the speaker.

[2.] But what if Bob is corresponding cryptographically with Alice is wearing (not burning) an American flag T-shirt in a public school, and some people threaten to attack him if he doesn’t stop (because he’s wearing the flag on Cinco de Mayo, and some Mexican-American students view such display of the American flag to be racist and insulting)? Under Tinker v. Des Moines Indep. School. Dist. (1969), the Court’s leading K-12 student speech case,

[C]onduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

And in Dariano v. Morgan Hill Unified School Dist. (9th Cir. 2014), the Ninth Circuit cited this sentence to conclude that Bob’s speech can be stopped (emphasis added):

We recognize that, in certain contexts, limiting speech because of reactions to the speech may give rise to concerns about a “heckler’s veto.” But the language of Tinker and the school setting guides us here.

Where speech “for any reason … materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” school officials may limit the speech. To require school officials to precisely identify the source of a violent threat before taking readily-available steps to quell the threat would burden officials’ ability to protect the students in their charge—a particularly salient concern in an era of rampant school violence, much of it involving guns, other weapons, or threats on the internet—and run counter to the longstanding directive that there is a distinction between “threats or acts of violence on school premises” and speech that engenders no “substantial disruption of or material interference with school activities.”

In the school context, the crucial distinction is the nature of the speech, not the source of it. The cases do not distinguish between “substantial disruption” caused by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances. See, e.g., Taylor v. Roswell Indep. Sch. Dist. (10th Cir. 2013) (observing that “Plaintiffs note that most disruptions occurred only because of wrongful behavior of third parties and that no Plaintiffs participated in these activities…. This argument might be effective outside the school context, but it ignores the `special characteristics of the school environment,'” and that the court “ha[d] not found[] case law holding that school officials’ ability to limit disruptive expression depends on the blameworthiness of the speaker. To the contrary, the Tinker rule is guided by a school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine.”); Zamecnik v. Indian Prairie School Dist. No. 204 (7th Cir. 2011) (looking to the reactions of onlookers to determine whether the speech could be regulated); Holloman ex rel. Holloman v. Harland (11th Cir. 2004) (looking to the reactions of onlookers to determine whether a student’s expression “cause[d] (or [was] likely to cause) a material and substantial disruption”); [citing also various Confederate flag display cases].

[3.] Now let’s move to Mahanoy Area School Dist. v. B.L., which was just argued today before the Supreme Court. The facts of the case (a disgruntled cheerleader suspended for a year from the team because she Snapchatted a photo of herself showing the middle finger, with the caption “Fuck school fuck softball fuck cheer fuck everything”) are far removed from flags or big-picture political advocacy. But the question presented before the Court is much broader than just those facts:

Whether Tinker, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.

You see now why the heckler’s veto question is so important: If the answer to this question is “yes”—if a school can say, “we’re punishing your off-campus speech because it causes on-campus disruption” and if that disruption can flow from students being offended enough by the speech—then Bob/Dariano could be punished for wearing an American flag T-shirt on Cinco de Mayo anywhere in town, or in an Internet post. All it would take is for some people to say that they’re super-offended and will punch Bob on May 6, when he comes back to school (or that they will otherwise disrupt school), and the school could then tell Bob and his buddies that they had best comply with the heckler’s demands as to all their speech, 24/7.

And the list could go on: A student could be punished for displaying a Confederate flag anywhere at any time (assuming this speech could be seen at school, which is very likely for any online speech or offline speech that could be recorded by someone). A student could be punished for a speech at a rally or at a church that sufficiently offends classmates on any basis (and especially race, sexual orientation, religion, etc.). A student could be punished for an op-ed in the local newspaper that expresses controversial political views, since of course that op-ed could be read at school and cause disruption at school.

The outcome in Dariano, I think, is very bad (though consistent with the reasoning of many lower court cases interpreting Tinker). But that result, coupled with a rule holding Tinker applicable to off-campus speech, would be utterly intolerable.

[4.] And perhaps because of this, in today’s oral argument, Lisa Blatt—the ace Supreme Court litigator who is representing the school—argued (a) for the Tinker disruption test applying outside school (as her client’s position required), but (b) for Tinker to be read, in school and out, in a speech-protective way that largely rejects the heckler’s veto:

[S]chools cannot target political and religious speech…. [T]his Court can clarify Tinker’s reach both on and off campus. It is irrelevant that critical or unpopular speech is the but-for cause of substantial disruption. The speech itself must be culpable. It must inherently compromise school functions, like organizing lockouts. Or the speech must objectively interfere with the rights of others, like severe bullying.

But, if listeners riot because they find speech offensive, schools should punish the rioters, not the speaker. In other words, the hecklers don’t get the veto. Schools’ special needs are limited to teaching kids how to think, not what to think….

JUSTICE ALITO: … [L]et me give you an example …. [S]ince Tinker occurred back during the Vietnam War, it … will relate to that. So, during the war, a student says, war is immoral, American soldiers are baby killers, I hope there are a lot of casualties so that people will rise up. Even if that would cause a disruption in the school, I understand you to say the school couldn’t do anything about it. Is that right?

MS. BLATT: That’s correct, that would be a heckler’s veto, no can do.

[Later, responding to Justice Kagan.]

MS. BLATT: … [T]he leading case on this is K.D. versus Fillmore. It is … a brilliant case where the T-shirt was “Abortion is homicide” T-shirt. Kids having abortions were upset. They said it was false because abortion is actually legal. And the school said: Get over it…. [H]e is passively wearing the shirt. He’s not terrorizing kids with it. He’s going about his day. Leave him alone.

And that case is cited as the gospel case for heckler’s veto….

Malcolm Stewart, arguing for the federal government as amicus in support of the school as to the result, seemed to largely agree:

[E]ven in cases where we are applying Tinker, you should not just look to … the likelihood that disruption will result…. [Y]ou should employ concepts like proximate cause to determine if a disruption does result, can that properly be attributed to the speaker or is it the fault … of the listener?

The proximate cause approach is a bit slippery, because, when Bob’s actions foreseeably lead Charlie to commit a tort or crime against Donna, Bob’s actions are often treated as the “proximate cause” of the harm, despite Charlie’s misconduct. The reactions of a heckler often will be foreseeable to the speaker (even if the speaker doesn’t actually want those reactions to happen).

But in context, it appears that the government, like the school district, is trying to urge a narrow reading of Tinker (speech can’t be punished because of heckler’s potential misconduct) in order to encourage the Court to adopt a broader zone of applicability for Tinker (speech can be punished under Tinker even if it’s off-campus).

Conversely, Georgetown law professor David Cole (national legal director of the ACLU), arguing for the student, and for the argument that Tinker doesn’t apply off-campus, is stressing that courts have read Tinker as allowing a broad range of speech restrictions:

Within the context of school supervision, whether it’s an after-school program, whether it’s a class trip, whether it’s in the classroom, Tinker applies, and Tinker does mean that the school can shut down a speaker if that speaker[‘s]  … words are going to lead to disruption, period. Whether it’s political, whether it’s religious, … that’s the state of the law … in the cases below. I don’t know where the other side gets this exception for political or religious speech. It just doesn’t exist based on the case law….

In school, you can apply Tinker. [But o]ut of school, you can’t. What does that mean? It means you can’t punish out-of-school speech because listeners in school might be disrupted by the message.

Lisa Blatt picked up on that, unsurprisingly, in the rebuttal:

There’s some sort of twilight zone going on when the head of the ACLU says that schools allow hecklers’ veto, punishment for whistleblowing, any kind of reporting, any kind of criticism, all that matters is someone is offended. And you have the Biden administration and the school districts saying that’s not true. That’s not what Tinker allows…. [T]he Saxe opinion [a Third Circuit opinion by then-Judge Alito], the Morse concurrence [by Justice Alito], … have left … clear lines for schools and that hecklers’ vetoes are not allowed.

And your choice is this: If … you could choose to either tighten Tinker or you can say, well, we’re going to assume Tinker is out of control on campus, but we will leave open season on schools and complete chaos as to what their test allows.

Now these are all lawyers at the top of their games, rightly making the arguments aimed at winning this particular case on behalf of their clients. And all of their positions are quite plausible. There is indeed ample Supreme Court authority condemning heckler’s vetoes that the Court could impose on Tinker and K-12 school cases. There is also indeed ample lower court authority accepting heckler’s vetoes, which David Cole of the ACLU correctly noted.

But the arguments highlight, I think, just how central the heckler’s veto question—can student speech be punished as disruptive because some people find its viewpoint offensive and threaten to attack the speakers or disrupt classes?—is to the off-campus/on-campus question (does the Tinker lower level of protection for speech apply to school outside school and outside school-operated activities?). And I hope that when the case is handed down (which ought to be by late June) the Court will tell us something about the heckler’s veto question.

Disclosure: My colleague Stuart Banner and I filed an amicus brief in the case, signed by Prof. Jane Bambauer, Prof. Ashutosh Bhagwat, and me. Our argument was similar to the ACLU’s, which is that Tinker has been read as allowing a good deal of speech suppression at school, and thus shouldn’t be extended outside school—but, again, much of that argument turns on lower courts’ broadly speech-restrictive (and pro-heckler’s-veto) view of the Tinker test, which the Court could overrule if it so chooses.

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In a case that was already moot in the colloquial sense of the term if not the legal one, the 9th Circuit Court of Appeals decided yesterday that an attempt by various states to stop the federal government from not restricting certain computer files can go no further. So for now, CAD files that can help instruct certain devices to make weapons at home can be legally spread into the public domain.

The history of the issues behind the case, State of Washington et al. v. State Department, is long and convoluted and embedded in arcane arguments about proper administrative procedure. What triggered the states to want to interfere in federal decisions was the result of a resolution in 2018 of a lawsuit from Defense Distributed, a company dedicated to the spread of gun-making software, founded by 3D weapon entrepreneur and provocateur Cody Wilson. In settling a case challenging their restrictions on such files, the government agreed to remove them from the control of International Traffic in Arms Regulations (ITAR).

The states pretended they were fighting for public safety against the threat of computer-assisted homemade gun making. But their efforts were, at their core, an attempt to make the government continue constitutionally questionable policies restricting the free spread of information in the form of certain computer files, even though that information is obviously free to be spread through other means. For example, gun-making instructions in a book would obviously be legally protected expression.

But a district court had earlier issued an “order granting the motion of 22 states and the District of Columbia to enjoin [the State Department’s] final rule removing 3D-printed guns and their associated files from the U.S. Munitions List.”

As yesterday’s decision explained, “The government used that broad discretion back in 2018 to shift control of the computer files in question from ITAR to CCL [Commerce Control List] under Commerce authority, and final rules regarding them were promulgated in January 2020.”

The 9th Circuit panel decision this week, written by Judge Ryan D. Nelson, is not based on any of the important First Amendment questions implicated in earlier cases about the same overall issue—government power to prevent the spread of information under the guise of munitions control—but on the simple legal fact that the laws regarding these particular munition controls just don’t allow for judicial rethinking of the agencies’ decisions.

As the 9th Circuit wrote, “Congress precluded judicial review of both the designation and undesignation of items as defense articles…..The texts of both the Control Act and Reform Act demonstrate Congress’s intent to preclude judicial review of both the DOS and Commerce Final Rules.” Thus, “because both the DOS and Commerce Final Rules were unreviewable, the plaintiffs had not demonstrated the requisite likelihood of success on the merits, and therefore, a preliminary injunction was not merited. The panel remanded with instructions to dismiss.”

The states were trying to argue that only adding items to the prohibited list is judicially unreviewable, while taking items off it, at issue here, should be reviewable. The 9th Circuit panel disagreed. In other words, the lower court erred in allowing the states to successfully challenge the new rules that allow, rightly, for the free spread of these files. It’s worth remembering it was never about U.S. citizens having access to them, but the alleged threat of exporting the files to overseas persons, as that was, by prior ITAR theory, the equivalent of overseas arms proliferation. But the use of the Internet for such file spread makes restricting them to U.S. citizens more complicated.

This being the internet, attempts to suppress the spread of the files is impossible and trying to do so can only mean giving the government the power to harass specific parties from doing something everyone else can do and has been doing. While the company was not a party in this specific case, the legal history of attempts to punish people for spreading these files has been focused on one party, Defense Distributed.

Defense Distributed announced on their DEFCAD site that in light of this decision, U.S. law must be interpreted to “permit the limited and unlimited publication of our growing library of CAD, CAM, and other files. All CAD files are currently free to download. CAM data remains unconstitutionally controlled by the EAR [Commerce’s Export Administration Regulations], and is restricted to US persons with DEFCAD accounts.”

There is no way to actually stop the spread of such files, though that is not an argument the Court was relying on here. Such restrictions being on the books does give the government an extra tool with which to bash those it disapproves of.

The power to classify items as regulatable munitions is at “President’s discretion,” so the Biden administration could try to put certain computer files back on the list that puts them under ITAR authority or the Department of Commerce equivalent, but one wrinkle is that information or items already clearly in the public domain are supposed to be immune from that. Wilson at Defense Distributed is excited that with this week’s decision, a space is created to get more and more such files out that barn door while it’s open, which should limit the Biden administration’s powers to cram them back in later should it want to try.

As DEFCAD’s statement hinted, even under Commerce’s new rule, it’s not a complete free-for-all for gun-making files. Commerce still insists it can restrict software that “is ready for insertion into a computer numerically controlled machine tool, additive manufacturing equipment, or any other equipment that makes use of the ‘software’ or ‘technology’ to produce the firearm frame or receiver or complete firearm.”

But Defense Distributed believes simple CAD files, not to mention such things as blueprints or instructional videos which were arguably restrictable under the old ITAR rules, are now officially liberated thanks to the 9th Circuit’s decision yesterday.

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So far 232 million doses of COVID-19 vaccines have been administered in the United States. Nearly 142 million Americans (54.2 percent of adults over age 18) have received at least one dose, and almost 97 million (37.4 percent of adults) are fully vaccinated. However, the rate of vaccinations in the United States has recently dropped from the April 13 peak of 3.4 million doses to an average of about 2.7 million per day in the last week.

This slowdown might be because the vaccination campaign is running up against people who are more reluctant to take advantage of the protection offered by the vaccines. In a recent CBS News/YouGov poll, 30 percent of Republican respondents said that they would not take the vaccine and 19 percent answered that maybe they’d get vaccinated.

Ten Republican members of Congress with medical credentials have just released a public service announcement video that urges their fellow Republicans to get vaccinated. The GOP Doc Caucus argues that these are very safe and highly effective vaccines. And importantly, the more Americans who get vaccinated the faster we can all return to pre-pandemic normalcy.

“I look forward to the freedom that I along with my loved ones will regain once the vast majority of Americans are vaccinated,” Sen. John Barrasso (R–Wyo.) says in the video. Maryland Rep. John Joyce observes, “Operation Warp Speed brought us safe and effective vaccines, and all in record time.” Maryland Rep. Andy Harris declares that “the FDA did not skip any steps,” while Texas Rep. Michael Burgess adds that they “cut bureaucratic red tape, not corners.”

One Republican medical doctor is a no-show in the video. Perhaps Sen. Rand Paul (R–Ky.) was not invited to participate or had other obligations that prevented him from joining his colleagues in this worthy endeavor. The senator’s office did not respond to multiple calls asking those questions.

In any case, Republican Sen. Roger Marshall of Kansas is right when he says that once Americans are vaccinated, “we can throw away our masks and live life as free as we did before.”

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In 1987, just two years before the collapse of the Berlin Wall would usher in the beginning of what Francis Fukuyama would later call the end of history, the rock band Guns N’ Roses released Appetite for Destruction, an album that would go on to become the best-selling debut L.P. in the history of rock and roll.

Packed with hits such as “Welcome to the Jungle,” “Sweet Child o’ Mine,” and “Paradise City,” Appetite for Destruction wasn’t just another record. It was a cultural milestone, at once the culmination of decades of trends in popular music and the closing out not just of the rock era but a society-wide flirtation with excess, fear, anger, and nihilism. For the next five years, Guns N’ Roses and particularly the band’s front man Axl Rose, would personify an America in rapid flux and change, desperate to move on from a worn-out, post-war consensus on national identity, gender roles, and global hegemony but equally terrified of wading into uncharted waters.

The new book Goodbye Guns N’ Roses: The Crime, Beauty, and Amplified Chaos of America’s Most Polarizing Band, by Art Tavana, is an extended essay on the cultural legacy not just of a band but of a period that informs contemporary debates on politics and culture even as it recedes from our memory. 

Tavana, an LA-based former writer for Playboy and LA Weekly, talks with Nick Gillespie about the attraction of popular nihilism; Axl Rose as the dispossessed son of middle America; how the band’s racist, xenophobic, and homophobic song “One in a Million” reflected national anxiety over coming political, social, and economic change; how the group’s beef with Nirvana, another band that couldn’t quite make it into the post-Cold War era, illustrates the limits of rock and roll; and what comes after the end of corporate mass culture.

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As part of a $2.3 trillion infrastructure proposal, President Joe Biden is pushing Congress to spend $100 billion fixing a problem that mostly doesn’t exist: widespread lack of access to broadband internet.

The Federal Communications Commission (FCC) estimates that there were about 14.5 million Americans, living in an estimated 4.3 million households, that lacked access to broadband internet at the end of 2019. That’s a serious but narrow problem that’s already being addressed by a combination of private and public efforts. New technologies like SpaceX’s low-orbit satellites can beam broadband internet to homes even in far-flung rural places, and the FCC has already budgeted more than $9 billion over the next 10 years as part of what the agency says is the “biggest single step ever…toward closing the rural digital divide.” The number of Americans without broadband access fell by 20 percent in 2019, according to an FCC report published in January, and it’s likely that the total is significantly less today than at the end of 2019.

But Biden’s infrastructure plan suggests a major change to what counts as “broadband” internet. As a result, as many as 64 million American households could suddenly appear to lack adequate online speed—even though nothing about their current services would change.

With a simple bureaucratic adjustment, the Biden administration could manufacture the appearance of a market failure where one plainly does not exist, opening the door for an expensive taxpayer-funded intervention to subsidize government-run internet boondoggles. Critics charge that Biden’s plan will crowd out private investment in broadband infrastructure while steering money to parts of the country where residents already enjoy state-of-the-art connection speeds. Instead of targeting a small amount of funds toward the truly needy who lack access to fast internet, Biden could end up spending $100 billion only to make the digital divide larger than ever.

“It’s not going to achieve the goal of bridging the digital divide in America,” Deborah Collier, a vice president at Citizens Against Government Waste, a fiscally conservative nonprofit, tells Reason. “It’s just going to throw more money at cities and localities that already have broadband.”

***

To understand exactly why changing the definition of broadband matters, you have to first understand a little bit about how internet speeds are measured and what currently counts as broadband.

Since 2015, the Federal Communications Commission (FCC) has defined a broadband connection as internet access with download speeds of at least 25 megabits per second and upload speeds of at least three megabits per second. In layman’s terms, that’s fast enough to stream a high-definition movie in the living room while three other people check Facebook, send email, or do some online shopping simultaneously.

A so-called “25/3” connection might not be fast enough for all households, but it is a standard that’s meant to reflect the needs of most Americans. The higher download speeds relative to upload speeds are a reflection of what consumers demand—because the vast majority of internet usage involves downloading, largely due to the huge demand for streaming video. Even after a surge in upload demand during 2020—thanks to all those Zoom calls and everyone working from home—about 93 percent of all internet traffic involves downloading content, according to data from the Internet and Television Association (NCTA), an industry group.

The White House’s fact sheet for Biden’s infrastructure plan calls for “building ‘future proof’ broadband infrastructure.” That term has a specific meaning in the broadband world.

“‘Future proof’ networks often means symmetric speeds,” explains Jeffrey Westling, a technology and innovation policy fellow at the R Street Institute, a free market think tank. In other words, Biden isn’t just calling for faster speeds, but equal speeds between uploads and downloads. Advocates for government-mandated “future proof” networks typically aim for a 100/100 standard—that is, 100 megabits per second in both uploads and downloads.

As a practical matter, those standards are just silly. A typical Zoom call uses about 1.5 megabits per second in upload bandwidth. With a 100/100 connection, “you could have ten kids pretending to do Zoom school but actually doing TikToks while you’re in the other room pretending to work but actually watching Netflix, and still not run out of bandwidth,” writes Scott Wallsten, president of the Technology Policy Institute.

Politically, however, defining broadband connections as “100/100” would mean two significant things.

First, it would radically change the number of Americans who currently have a “broadband” connection to bolster calls for government intervention in the marketplace. According to data from the Technology Policy Institute, there are approximately 4.3 million American households that do not currently have access to a 25/3 internet connection. But there are more than 64 million households—about 40 percent of the country—that don’t currently have access to a 100/100 connection.

“If 100/100 Mbps or asymmetrical speed similar to this threshold was adopted as the minimum standard, more Americans living in urban areas that already have reliable broadband would become underserved,” writes Will Yepez, a policy associate at the National Taxpayers Union Foundation.

The Biden administration wants to argue that the $100 billion broadband effort is the 21st century equivalent of the federal government’s electrification efforts during the 1930s, which helped bring power to wide swaths of the country. “Broadband is the new electricity,” reads the White House’s fact sheet on the proposal. That comparison looks a lot better if the Biden administration can say there are 64 million households lacking sufficient internet connectivity—even though almost all of them already have access to broadband-level speed.

Secondly, this maneuver would allow for a bit of political favoritism by prioritizing fiber optic internet services over the alternatives that have sprouted up. There are lots of different services that can offer broadband internet at 25/3 speeds: cable connections, fixed wireless, and even new low-orbit satellite systems like the Starlink service recently launched by Space X. But there’s really only one way to deliver reliable 100/100 speeds, and that’s via fiber optic cable.

Of course, fiber internet is also one of the more costly and difficult types of internet service from an infrastructure perspective. It requires digging trenches, laying pipes, and physically connecting each and every household. It’s a practical impossibility for rural parts of the country and tends to be a more expensive option elsewhere. That’s a problem if you’re in the business of providing internet service to people as quickly and cost-effectively as possible, but it’s an opportunity if you’re looking to spend lots of government money on a high-profile infrastructure plan.

“It’s actually going to harm areas of the country that do not even have basic, minimum broadband service,” says Collier. “The funding is going to be redirected away from those areas and put into areas of the country that already have basic or better broadband service right now—just to upgrade those networks to 100/100 speed.”

Put another way: if there are suddenly 64 million American households without access to “good” internet under the Biden administration’s new definition, then broadband providers will focus their upgrade efforts on areas with dense populations. That will likely crowd out efforts to reach households that still lack even 25/3 connections and leave far-flung rural areas behind, again.

“Companies would be more likely to invest in these now more profitable areas rather than focus on those who truly lack reliable access to high-speed internet,” says Yepez.

The Biden administration could end up spending $100 billion to accomplish the proverbial bridging of the digital divide—and then discover that the divide has only gotten larger.

***

A critic might point out that using the 25/3 standard is no less arbitrary than the 100/100 standard, and in some ways that’s correct. The FCC has changed its definition of what counts as “broadband” on three occasions already. The first standard, in place from 1996 through 2010, required at least 200 kilobits per second upload and download speeds. From 2010 through 2015, that was upped to 4 megabits per second for downloads and 1 megabit per second for uploads. It’s been six years since the 25/3 standard was adopted, so maybe it’s time for another change?

“Any new definition should be based on evidence and take into account the tradeoff between the expected costs of achieving those speeds versus the benefits of the increase,” says Wallsten.

The costs of the 100/100 switch are apparent—crowding out investment in non-fiber broadband, a huge increase in government spending to speed up already fast internet in many places—but the benefits are murky at best.

Keep in mind that close to 60 percent of American households already have access to 100/100 speeds, if they choose to pay for them. Most don’t. Those that do rarely use that much bandwidth.

The Wall Street Journal and researchers at Princeton University and the University of Chicago teamed up last year to study the internet use of 53 Journal staffers—people who likely use the internet more heavily than most Americans. The eight users in the study who had connections with download speeds of at least 100 megabits per second used, on average, 7.1 megabits per second of their capacity.

“People who paid for even faster speeds still streamed video at about the same speeds as everyone else,” the Journal concluded. The benefits of 100 megabit connections are “marginal at best, according to the researchers,” and the evidence suggests that most Americans who are paying for internet connections that fast are being “oversold.”

And that’s just on the download side of the equation—the direction that 93 percent of all household internet traffic travels. It’s almost impossible to imagine a scenario where an ordinary American would use 100 megabits of upload capacity.

Of course, the right internet connection speed is going to vary from household to household and user to user. For some people, paying for 100/100 connections might make sense. But there seems to be little evidence to support the idea that 100/100 should be the FCC’s standard for what counts as passable internet access.

If broadband access is indeed “the new electricity,” then Biden’s proposal looks less like hooking up a power line to every house and more like a mandate that taxpayers fund the construction of a hydroelectric dam in every backyard.

There is one final issue here. Having access to broadband is not the same as actually using it. If there is a fiber optic cable running past your house or if you live in an area covered by fixed wireless or low-orbit satellite internet, your household is counted among those that currently have access to 25/3 broadband. That’s not the same as actually paying to use it—something that many Americans either can’t afford or choose not to do.

If the Biden White House was interested in ensuring that more Americans could use broadband—as opposed to creating phantom justifications for spending huge sums of money on municipal broadband—one way to do it would be to subsidize the cost of internet access for low-income households. That’s what some major broadband providers have been urging the White House to do in recent weeks, which both spares non-fiber broadband companies from being declared obsolete and expands their customer pool.

It’s right to be skeptical anytime an industry says that the solution to a social problem is more subsidies for itself. Still, the broadband providers are at least asking the right question. Namely: How do we get more Americans connected to the existing broadband infrastructure that’s already built and available for use?

The Biden administration, meanwhile, is trying to spend lots of money to solve a different problem—one that doesn’t even really exist, at least not in a way that demands $100 billion in new federal spending—and already seems to be setting itself up for failure. The White House’s fact sheet about the infrastructure plan says it “prioritizes support for broadband networks owned, operated by, or affiliated with local governments, nonprofits, and co-operatives,” because those providers have “less pressure to turn profits.”

That seems like a clear indicator that municipal broadband operations will get to move to the front of the line when the Biden administration starts handing out piles of cash to solve the broadband connection problems that don’t actually exist in most places. But municipal broadband has been a major boondoggle in many places where it has been tried—the Taxpayers Protection Alliance has a list of more than 200 taxpayer-funded internet projects that are deep in debt or have been abandoned. Even if municipal broadband didn’t have an established track record of failure, it seems completely unnecessary for the federal government to prop up new competitors to existing broadband providers in places that already have fast internet service.

In some ways, this coming debate over the definition of broadband is likely to mirror the broader debate over what, exactly, should count as infrastructure. The Biden administration and its allies are pushing the idea that everything from health care programs to job training to child care is infrastructure—while only about half of Biden’s $2.25 trillion spending bill is aimed at traditional infrastructure priorities like highways, bridges, rail, and pipelines.

Everything is infrastructure. Nothing is broadband.

The Biden administration should focus on the few remaining pockets of the country where high-speed internet isn’t available, rather than futz with the FCC’s definition of broadband in order to justify spending billions of dollars so residents of urban areas with already fast connections can stream 10 movies at the same time.

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In tonight’s address to Congress President Joe Biden is expected to announce a $1.8 trillion spending plan that includes two years of free community college.

The plan, according to the White House’s fact sheet, is for $109 billion to pay for free college, $80 billion for expanding Pell grants that will reduce the need for low-income students to take out loans, an additional $62 billion to focus on retention and to try to improve completion rates at community colleges.

Biden is essentially resurrecting a proposal from President Barack Obama’s administration, one that is popular in education quarters. That’s in part because, really, it ends up serving as a subsidy of college staff, not students.

In reality, community college in America is already extremely accessible and affordable for low-income students. The average student who takes advantage of existing grants and scholarship programs can already attend two years of community college for free, based on 2020 college pricing data.

But the problem is that community colleges have an egregiously bad completion rate. Only about 40 percent of community college students complete their education within six years, the lowest completion rate of all types of colleges in the United States.

The Obama administration’s plan for free community college came with a list of strings attached that mandated institutional reforms and student support programs. This caused the price tag of Obama’s plan to balloon from $60 billion to $90 billion. It’s also why I characterized it as a subsidy for colleges, particularly college administrators, rather than students. It was designed purposefully to increase community college spending.

Biden’s price tag is even higher, and it does include some of the same ideas as Obama’s proposal. His plan for improving student retention is heavy on developing costly administrative support structures: “States, territories, and Tribes will receive grants to provide funding to colleges that adopt innovative, proven solutions for student success, including wraparound services ranging from child care and mental health services to faculty and peer mentoring; emergency basic needs grants; practices that recruit and retain diverse faculty; transfer agreements between colleges; and evidence-based remediation programs.”

Biden’s free tuition won’t be means tested. This is about getting butts in community college seats, as enrollment has seen a massive decline partly connected to the pandemic. Fall enrollment at community college dropped 10 percent over 2019. The drop among students attending college for the first time was even more severe, 21 percent. By comparison, four-year schools only saw a 1 percent drop. The Hechinger Report notes that these low-income students who attended community colleges were the ones who were often hardest hit by the economic effects of the pandemic shutdowns. So while there were financial hardship reasons for the enrollment decline, tuition and fees are not as big a culprit as a pandemic-driven economic crisis.

This proposal will spark a lot of discussion about the role community colleges play in occupational training and statistics on how many jobs “require” a post-secondary degree or special certification. But will any of that discussion focus on how much of this certification is mandated by onerous government occupational licensing demands that may not actually be necessary? We should all at least acknowledge when government spending is offering a “solution” to problems caused by government mandates.

For what it’s worth, the Obama administration did at least make note that unneeded occupational licensing requires extensive hours of training and can cost thousands of dollars. But then, almost comically, his administration also proposed funding the development of new types of credentialing systems that would direct people toward community colleges that had received government grants.

While community colleges are valuable tools to improve access to higher education for low-income students (full disclosure: I got an associate’s degree from a community college before transitioning to a four-year school for my bachelor’s degree), directing billions of dollars in subsidies to an already-affordable college system with such a high rate of baked-in failure seems like pork, not an investment.

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