When you think "First Amendment martyr," you don't exactly think AT&T.; It's a safe bet that few executives at the telecom giant tote aclu membership cards or pace their office corridors reciting the lyrics to "Fight the Power." But AT&T; has decided that channeling William Kunstler is a shrewd (if deeply dishonest) way to ward off government regulation. And, incredibly, it's working.

In July 1999, AT&T; filed a lawsuit in Broward County, Florida, claiming its First Amendment rights were under siege. At issue was the use of "broadband" cable lines--wires that now carry cable television but are capable of carrying telephone, cable, and Internet data simultaneously. AT&T; owns the lines in Broward County, and officials there had ordered the company to give competing Internet service providers access to the wires for a reasonable fee. According to AT&T;, by dictating what content traveled over its wires, Broward's ordinance trampled on its right to free speech.

Although local authorities have long regulated use of local telephone lines--for instance, compelling the Baby Bells to let service providers like America Online use their pipes--a Florida court sided with AT&T.; In a surprisingly strident 27-page opinion issued last November, Judge Donald Middlebrooks compared Broward's officials to Henry VIII, who required printers to obtain royal licenses. Unless regulators could prove a compelling reason for AT&T; to open its cable to outsiders, he concluded, the company should be free to operate its broadband network without interference. Rather than appeal and face a pricey and protracted legal struggle, Broward County decided this April to repeal its ordinance altogether.

That was very unfortunate. Because there is an extremely good reason for laws like the one Broward County passed: They prevent companies like AT&T; from developing monopolies over Internet access. If somebody's First Amendment rights are at stake here, it's not AT&T--it;'s the individuals whose access to information a monopoly could restrict. By giving in, Broward set a precedent that could scare off other local authorities considering similar regulations. And, while the federal government could still try to step in, the Bush administration isn't likely to. As a result, AT&T; may soon monopolize broadband cable--and with it much of the nation's Internet access--thus turning cyberspace into the equivalent of a restaurant that serves only Pepsi.

To understand why, you need to understand all the subtle ways Internet service providers can control the content their subscribers see. An Internet service provider--whether it's a large company, like Earthlink, or one of the nation's 6,000-plus local outfits--can block access to certain sites, or even whole portions of the World Wide Web. More subtly, it can steer users toward favored sites or brands. Sound overly conspiratorial? It isn't. AOL filters out pornography and, with it, some medical and mainstream artistic sites. Roadrunner, the fledgling broadband service owned and operated by Time Warner, is notorious for assailing users with pop-up plugs for CNN and Warner Brothers cartoons.

This isn't a big problem right now, because most people still use telephone lines to access the Internet. Although the owners of those lines might be tempted to force users to go through their service providers--for example, Verizon might want Verizon telephone customers to use only Verizon's Internet service--local government regulations prohibit them from doing so. As a result, people can choose among a wide variety of companies providing access to the Internet. They can shop around for the best price or the kind of access that best suits their purposes. And it also means they aren't prisoners of their providers' editorial control. If you don't like AOL's filters, you can simply subscribe to a service that doesn't have them.

The danger is that, because of the way technology is developing, this freedom may not last. Broadband represents a whole new chapter in Internet usage. Because of its huge capacity for carrying information, it will soon be possible to bundle television, pay-per-view movies, World Wide Web data, and interactive communication all in one package. This means broadband users will have one screen through which they can view espn's "SportsCenter" (the network's sports news show), read articles on espn.com (the network's website), and buy replica fan gear in the espn TeamStore (the network's online shopping site). The catch is that the information has to travel over existing residential broadband lines, 80 percent of which AT&T; now owns. If the government regulated cable lines the way it does phone lines--by prohibiting the owner of those lines from restricting who can use them to provide Internet service--this would be no big deal. But that's exactly what Broward County tried to do--and Judge Middlebrooks said it was unconstitutional.

AT&T;, of course, insists it has no interest in restricting information. It notes that its existing Internet service providers (such as Excite@Home) allow users "unlimited possibilities" to roam the Internet. But the company will be sorely tempted to hedge on that promise in the coming years. It has spent more than $100 billion gobbling up America's cable lines and acquiring major pipe-laying outfits like MediaOne and TCI. Since subscription fees from Internet users will probably be inadequate to recoup that massive investment, AT&T; will have to find new ways of making money. And peddling preferential treatment is the obvious way to go.

In the most likely scenario, AT&T; would sell the rights to prominent placement on Web portals, faster links, better access, and so on--all for a steep price. Companies with deep pockets would gobble up these premiums. Less affluent content providers would end up in a cyberspace "slow lane" or denied service altogether. Nonprofit organizations, for example, often enjoy steep discounts from independent service providers. Will AT&T; be so eager to provide affordable, effective wiring to, say, a consumer group critical of the telecom industry? What about a political candidate running against one of AT&T;'s Capitol Hill allies? Or a magazine that publishes articles lampooning corporate free-speech claims? In the hands of a monopoly like AT&T;, surely this sort of control would do far more damage to free speech than the kinds of regulations Broward County had proposed.

In its defense, AT&T; and other opponents of open-access laws insist there will be no monopoly--that consumers unhappy with the choices available through broadband can always use alternative technologies to connect to the Internet, just as they do now. There are, for example, digital subscriber lines, or DSL, which phone companies offer. But, for residential consumers, DSL service is more expensive, available in fewer households, and less equipped to handle video content. AT&T; cites wireless technology as another possible competitor to its broadband service, but it may be a decade before such connections provide broadband's speed. Meanwhile, as broadband becomes more popular, more and more content will be available only through broadband technology (in the same way that some websites today are set up so you can't really navigate them with a standard modem). The supposed alternatives notwithstanding, people interested in certain kinds of content would have no choice but to get it through broadband, which would mean using AT&T;'s cable lines.

Although the Florida ruling may chill state action elsewhere, successful federal intervention is still possible--in theory. Last June the Ninth Circuit Court of Appeals ruled that broadband-enabled cables do indeed provide a telecommunications service, potentially clearing the way for the Federal Communications Commission to regulate them. (The ruling was not entirely clear on this point, since federal regulation was not the matter at hand in the case.) But the FCC has long maintained a hands-off approach to cable television; and its new chairman, Michael Powell, isn't about to change course, even though cable itself is about to undergo a huge technological transformation. When pressed on the topic in February, Powell hemmed and hawed, then suggested that "openness is not always good." Two months later, in a speech to the National Association of Broadcasters, he declared that FCC restrictions on media ownership were "offensive to First Amendment values." The Broward County decision can only embolden him further by ostensibly giving him free-speech cover to stay out of the fray.

This will please opponents of broadband regulation and of government regulation more generally, who liken Broward-style laws to an appropriation of private property. But if the FCC lets AT&T; have its way on broadband, it won't be standing up for the rights of a private entity; it will be forfeiting ownership of a public asset. It was the government, after all, that first developed the Internet, as a communication tool for Pentagon researchers. And it was university-based hackers who figured out how to mesh unix with Internet protocols, perfecting the guts that drive the World Wide Web. AT&T;'s role in broadband development consists of a smart business decision to buy up cable lines--a significant expense, to be sure, but not one that should trump the public's right to recoup its own investment.

BRENDAN I. KOERNER is a Markle Fellow at the New America Foundation.