Does Net Neutrality Violate the Fifth Amendment?

SonicSpike writes "A forthcoming paper from Boston College Law Professor Daniel Lyons offers an even stronger basis for challenge: The Fifth Amendment. Under Prof. Lyons's theory, net neutrality would run afoul of eminent domain. It would constitute a regulatory taking, requiring just compensation. Under US Supreme Court precedent, any governmental regulation that results in 'permanent, physical occupation' of private property constitutes a per se taking. This is true even where the government itself is not doing the occupying. If the government grants access to other parties to freely traipse across private property, it's still a taking. In effect, the government has forced one party to give a permanent easement to another party, destroying the first's 'right to exclude.'"

Comments

Simple answer

[Gudeldar]

No.

Re:Not all private

[DreamsAreOkToo]

Another argument:

Since the infrastructure is owned mostly by the public, removing net neutrality is a regulatory taking against all the public and therefore having anything other than net neutrality would require just compensation to all the public.

Re:Not all private

[PatHMV]

Recursive sigh... Yes, under the Kelo decision, a state could take private property for a "business park." This had NOTHING to do with "interstate commerce," as it was the local government, not the federal government, taking the property. The Kelo decision thus does NOT say anything about the "IC Clause" trumping anything.

PLUS, the town government taking the property had to pay JUST COMPENSATION for the property. They couldn't just take it away and not pay for it. Sheesh. The ignorance of the law on /. is simply breathtaking.