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What Sotomayor Could Mean for Network Neutrality and the First Amendment

Here's the question I'd ask Sotomayor: Please tell us about the free speech rights of media, telephone, and cable companies. That is, do their rights trump the rights of citizens and users of media?
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Senator Al Franken will ask Judge Sotomayor questions this week as a member of the Senate Judiciary Committee and has said he will ask about network neutrality. As the Daily Show once explained, "network neutrality" is a proposed law that would forbid phone and cable companies from interfering with your Internet access. Phone and cable companies have announced a desire to cut special deals with websites, to slow some down, speed some up, and just block others. On wireless platforms, the carriers already limit Internet access, for example not permitting you to use Skype on mobile Internet offerings.

Franken has a brilliant insight here. Most people would wonder what the Supreme Court has to do with network neutrality. There are two main legal issues: (1) can Congress adopt a network neutrality law without the Supreme Court overturning it, and (2) can the Federal Communications Commission adopt a network neutrality law without a specific law passed by Congress first?

Judge Sotomayor's history is a blank slate on this, with very few hints.

Let's begin with the Congress question, which involves the First Amendment. Here's the question I'd ask: Please tell us about the free speech rights of media, telephone, and cable companies. That is, do their rights trump the rights of citizens and users of media?

The question might surprise you. Scattered court decisions, telco-funded think tank wonks, and the dicta and dissents of some Supreme Court Justices and liberal scholars would hold that the First Amendment itself may forbid network neutrality. (For a long rebuttal, see here). The same arguments would invalidate much of President's Obama ambitious and pro-speech Tech Innovation Agenda, which includes media ownership limits, Internet access for all Americans, and benefits for public broadcasting. Essentially, some judges think that the First Amendment belongs to private companies--to media, phone, and cable companies specifically--not to you and me. And if they're right, we can do nothing to reform media or keep the Internet open for freedom of speech, in the real world, for all Americans to use text, video, and voice to communicate freely.

The key thing to know is that the First Amendment is a constitutional limit. That means that judges, not Congress, have the final say in applying it. Usually, Congress can tax cigarettes or declare war. Congress, in theory, represents a majority and majority rule is a-okay. But sometimes a judge must strike down a law because a majority can't take away your fundamental rights, including free speech (or, according to Roe v. Wade, a woman's privacy rights). That's the beauty of the First Amendment.

But let's say you're a phone or cable company. You want to stop network neutrality, even though network neutrality is common sense, good for free speech and economic innovation and global competitiveness, and naturally popular.

What to do? Plan A is to continue doing what you do best: you spend hundreds of millions lobbying on network neutrality. You convince lots of your friendly Congressmen who like your money and your lobbyists that network neutrality is either "a solution in search of the problem" ("because we'd never take over the Internet!") or the exact opposite ("because we must take over the Internet, or else we'll loose money and never build out to all Americans!"). Who needs consistency when you have a big PAC?

But you might hit a roadblock, and need a plan B. Because you may fool some of the Congressmen all of the time, but you're not going to convince the public that Comcast or AT&T should control the Internet. Since 2006, millions of Americans, and groups as diverse as the Christian Coalition and, and an army of bloggers and online journalists, have acted together to preserve and extend network neutrality protections (such as extending the baselines in the Free Press-Comcast case). And President Obama is with the public. He has affirmed his support for network neutrality, as an original co-sponsor of the Senate network neutrality bill, in his tech innovation agenda, in his pick of an FCC Chairman, with 7.2 billion dollars in stimulus funds, and even at MTV when discussing cyberwarfare. He has said he would take "a backseat to no one" in his support for network neutrality. On top of that, even the Bush FCC took some actions on network neutrality cases, sanctioning a phone company that was blocking online Voip phone calls and a cable company (Comcast) blocking Internet tools for online TV and software distribution. President Obama can't take a back seat to that.

So you go to the Lobbyist Book for Usual Plan B: lawsuit. You will run to court and say, "This law is invalid." Sure, sure, the majority of Americans supports the law, Congress or the FCC will have enacted it, and and the Christian Coalition will have performed songs in techni-color harmony in Youtube mashups re-tweeted across the globe, but too bad. The law violates a fundamental right and must be struck down. That is, you argue, network neutrality violates the telco's fundamental free speech right. A telco, like any other speaker, can't be forced to change its speech, and the Internet is speech.

The argument is all about analogies. Over the years, First Amendment doctrine has become sort of a mess. There is a general assumption that the First Amendment applies differently to different media companies--specifically, that Congress can regulate broadcasters more strictly than it can newspaper companies; that cable companies get some middle amount of protection; and Congress has tons of discretion to regulate phone companies carrying phone calls. (I disagree with this story, but that's not important here.)

So if you're a telco lobbyist, you compare yourself to a newspaper. Like a newspaper, you carry speech, and should have the "editorial discretion" not to carry certain speech; just as a newspaper doesn't have to publish every letter to the editor, you don't have to carry every website, newspaper, or online phone call or movie. You have "editorial discretion," and a First Amendment right, to control the Internet. One cable company made this argument regarding the FCC's Free Press-Comcast decision, but fell on deaf ears at the FCC.

The lobbyists tend to lose these cases in court, but they've won some major cases, and with this argument. Courts have struck down cable ownership limits (which limit the number of people to whom a cable company can "speak") and other pro-speech-diversity rules and media-specific competition rules (including one forcing telco's to "say" things they don't want by carrying certain TV channels without discretion, which some lobbyists cite as precedent for striking down a network neutrality) .

The lobbyists are, in fact, wrong, under Supreme Court precedent. At worst (for society), courts could apply the annoyingly confusing standard often applying to cable (called the "Turner" standard by us law geeks, and sometimes applied without much bite, sometimes not). But even Turner is completely inappropriate. Congress should have the same discretion with Internet access as Congress had with phone companies. Congress traditionally regulated phone companies as "common carriers", which means the phone companies were required to carry all calls without any "editorial discretion." Sometimes, phone companies will claim they have "editorial discretion"--like when Verizon determined NARAL Pro-Choice was too controversial for a short-code and so used its "discretion" to "censor" the message. But this argument is silly and Congress can ignore telcos' supposed editorial discretion to block speech in order to ensure all Americans have access to the infrastructure of the communications system to speak, build businesses, call their families, access all online content, etc. Judges, and the First Amendment, don't come to the defense of telcos and cable companies on this. Instead, the First Amendment would defend President Obama's pro-speech agenda.

I would love to hear Judge Sotomayor explain whether the lower, more appropriate, common carrier, standard should apply.

There are times when the speech rights of media companies and of the public overlap--if Congress forbids cable companies from carrying channels that criticize the bank bail-out or the stimulus bill. But ownership limits and open Internet rules are good for us, maybe bad for the carriers. Who wins?

That brings us back to our question re Congress: Do the free speech rights of media, cable, and phone companies trump the rights of citizens and users of media?

Judge Sotomayor hasn't opined much on the important rights of listeners and users of media. Nor has she opined on whether Turner or common carrier scrutiny would apply to the many means of accessing the Internet.

And question 2: Beyond the First Amendment, does the FCC have the authority to enact a network neutrality rule, or must Congress do so?

Let's say Obama's FCC, headed by his pro-network neutrality classmate and top tech advisor, wants to move quickly on network neutrality, even before Congress passes a law. Or let's say a cable or phone company violates network neutrality and the FCC has to act on a complaint (which has happened). Does the FCC have to wait for Congress to pass a law, or can the FCC issue a rule or enforcement order?

This shouldn't even be an issue. It's an issue, however, because of the Bush FCC. The Bush FCC didn't want to regulate, so it made a series of idiotic decisions (one of which was upheld by a divided Supreme Court) which could be seen as giving away authority. The FCC concluded that Comcast's or Verizon's Internet access service was an unregulated computer service, kind of like Google or Mozilla Firefox, rather than a service involving a "telecommunications service," as the Democratic FCC had concluded for DSL service. This matters. Congress gave the FCC authority to regulate "telecommunications services", but the FCC only regulates an unregulated computer service through something called "ancillary jurisdiction." In adopting its most recent network neutrality order, re Comcast, the FCC has asserted that ancillary jurisdiction. That case is on appeal.

That appellate court will decide whether the FCC can use ancillary jurisdiction to uphold a network neutrality ruling based on only three Supreme Court cases, the last of which was decided in 1979, and some key appellate cases (discussed here). Sen. Franken probably wants to know what Judge Sotomayor thinks of those cases. A narrow reading of those cases could send the FCC back to the drawing board, forcing the FCC to reverse the Bush era decisions first, before implementing network neutrality, slowing down the agenda of the President--and the overwhelming majority naturally supporting network neutrality.

So, how do you understand the limits and scope of ancillary jurisdiction as applied to regulation of Internet access?

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