The beginning of the most fraught debate on government regulation in 2017 happened 14 years earlier when a young law school professor named Tim Wu wrote that net neutrality would “preserv[e] a Darwinian competition among every conceivable use of the Internet so that the [sic] only the best survive.” Not exactly a rallying cry against the free market, and while the issue was hotly debated among legal academics, its first attempt to become law in the United States failed miserably. Net neutrality would not be manifested in the law until 2010 with the passage of boletín 4915 in Chile.
Federal Communications Commission Chair Julius Genachowski, with a Democratic executive branch, decided to follow Chile’s lead despite the threat of Congress pushing back and enacted the FCC Open Internet Order on December 21st, 2010. This order was not net neutrality, at least in the eyes of the policy’s advocates, but it enraged the Republican Party. And on April Fool’s Day, Joshua D. Wright published a post titled “Welcome To Net Neutrality” on a blog called “Truth on the Market.”
The moment my colleagues and I have been dreading has finally arrived. Tonight, President Trump announced the appointment of Judge Neil Gorsuch of the 10th Circuit Court of Appeals to fill the seat of the Supreme Court opened by the death of Justice Scalia. But Judge Gorsuch must still be confirmed by the Senate to become Justice Gorsuch, and per Supreme Court appointment rules the Democrats could block his appointment by filibuster. But this post is not about whether the Republicans “deserve it” after the treatment of Judge Garland or some such punditry: instead I want to focus on what the legal consequences of a Justice Gorsuch would be as distilled from court dynamics and his record. After all, at 49 years old, Judge Gorsuch has the potential to be on the Court for decades upon decades.
Barney Frank may be three years into retirement from politics, but his spirit continues to haunt the LGBTQ movement. As if to emphasize the exclusionary nature of their politics, a invite-only conference call between the “leaders” of the LGBTQ US movement rehashed a debate that has been going on since the so-called “Gay Liberation” movement decided that Sylvia Rivera and other trans women were harmful to their respectable image. The debate was sharply divided into two sides: purse string holders Gill Foundation and National Center for Trans Equality (NCTE) on one side and ACLU, Lambda Legal, and a somewhat less confrontational HRC on the other side. Gill and NCTE are advocating for what they call “incrementalism,” focusing energy and resources on passing anti-LGBT discrimination in employment and housing and essentially abandoning public accommodations to be dealt with later. ACLU and Lambda Legal reject this “incrementalism,” pointing to laws like HB2 as pressing discrimination that demands attention and questioning whether public accommodations would ever be returned to if abandoned now. That’s right: we are in a bizzarro world where the HRC is defending the most marginalized trans people against NCTE redirecting resources away from them. But aside from HRC, this lineup is not all that surprising and represents a fundamental difference between how the lobbying-focused nonprofits think of advocacy and how community and litigation-focused nonprofits think of advocacy.