Citizens United and the Urgent Case For an Open Internet

In the wake of Citizens United, preserving an open, neutral Internet may be our best hope for counterbalancing the deluge of corporate money that will now influence elections. With low barriers to entry, an open Internet can enable all sorts of political speech -- it can provide room for lively political debate, help individuals connect and mobilize around causes, and allow small donors to aggregate their funds.

But phone and cable companies, emboldened by the blowout corporate victory in the Citizens United Supreme Court decision, are saying that the landmark case confirms that Net Neutrality -- the rule that says phone and cable companies can't block your e-mails or slow down your favorite Websites -- violates their First Amendment rights. In the words of Michael Wendy, formerly with the US Telecom Association, the Supreme Court's ruling should "put the FCC on guard."

This absurd argument was bogus from the get-go, and Citizens United hasn't improved its merit. Understanding why Net Neutrality rules don't threaten the First Amendment rights of corporations is pretty simple: when I send an e-mail to a colleague expressing concerns about the proposed merger between Comcast and NBC, it's pretty clear that I'm the one speaking, even if I use Comcast's Internet access service to send the e-mail. Similarly, when I read the New York Times online using Comcast's Internet access service, it's equally clear that the author or speaker is the writer who produced the story or the New York Times itself, not Comcast.

The First Amendment is about speech or "expressive conduct." Speech is composing an e-mail or writing an article. It is burning a draft card. It is not routing digital data that contain the communications of others. The postman doesn't speak when he delivers our mail. The newspaper deliverer doesn't speak when he delivers the paper. Nothing in law or logic suggests that our Internet access service providers speak when they deliver our bits -- but that's the case they're making.

The cable and phone companies would have us believe that if the government enforces Net Neutrality, it forces the companies to adopt the views expressed in those e-mails. Net Neutrality does not force an operator to endorse particular applications, content, or viewpoints. No one would mistake my views for Comcast's, and it's obvious that the cable and phone companies don't retain editorial control over the content they transmit.

These examples lay bare how vastly the phone and cable companies overreach when they compare the facts presented by Citizens United with the regulatory scenarios proposed in Net Neutrality debates. In Citizens United, the Supreme Court said that limiting the amount of money a person can spend on political communication advocating views or supporting candidates in the few days prior to an election implicates our core First Amendment values.

While it is true that Citizens United disastrously expanded the First Amendment protections extended to corporations when they engage in speech or expressive conduct, nothing in the decision transforms laws that guide the transmission of data containing content created by another individual or entity, political or otherwise. Recognizing that the postman has First Amendment rights of his own doesn't mean that he can refuse to deliver your mail if he opens a letter and disagrees with the sender.

The cable and phone companies' insinuation that the First Amendment accords them the right to block or otherwise limit the political activity of their subscribers is an act of sheer hubris. The fact that they now enjoy the unfettered right to donate to the causes of their choice ought to be enough.

Using Citizens United to further extend corporate influence over our core communications is legally unsupported and unwise on many levels. We should reject these contentions for what they are -- red herrings designed to obscure the real First Amendment values that Net Neutrality protects: diversity of thought, civic participation, and democratic engagement online and beyond.