FCC: Sorry, No — Net Neutrality Does Not Violate ISPs' First Amendment Rights
from the legal-shenanigans dept
Back when Verizon sued to overturn the FCC’s original, flimsier 2010 net neutrality rules, the telco argued that the FCC was aggressively and capriciously violating the company’s First and Fifth Amendment rights. “Broadband networks are the modern-day microphone by which their owners engage in First Amendment speech,” Verizon claimed at the time. It’s an amusing claim given that the entire purpose of net neutrality is to protect the free and open distribution of content and data without incumbent ISP gatekeeper interference. Verizon ultimately won its case against the FCC — but not because of its First Amendment claim, but because the FCC tried to impose common carrier rules on ISPs before declaring they were common carriers.
That’s of course why the FCC finally decided to define ISPs as common carriers under Title II. But in their torrent of lawsuits against the FCC’s new rules, ISPs continue to try and hide their anti-competitive intentions behind the First Amendment. AT&T’s court filing from earlier this year, for example, made it clear AT&T intends to argue the FCC is violating its First and Fifth Amendment rights:
“In a statement of issues that AT&T intends to raise when the case moves further into the court process, the company said last week that it plans on challenging whether the FCC’s net neutrality order “violates the terms of the Communications Act of 1934, as amended, and the First and Fifth Amendments to the US Constitution.” The First and Fifth Amendment will be used to attack the FCC’s decision to reclassify both fixed and mobile broadband as common carrier services, as well as the FCC’s assertion of authority over how ISPs interconnect with other networks.”
In its own filing in the US Court of Appeals for the District of Columbia Circuit (pdf) this week, the FCC argues that this reasoning is, to use a less technical term, crap:
“Nobody understands broadband providers to be sending a message or endorsing speech when transmitting the Internet content that a user has requested. When a user directs her browser to the New York Times or Wall Street Journal editorial page, she has no reason to think that the views expressed there are those of her broadband provider. Nor is there anything in the record to suggest that companies providing mass-market retail broadband service as defined in the Order are seeking to convey any particularized message to their users. Instead, when providing Broadband Internet Access Service, broadband providers function (and are understood by their users to function) simply “as conduits for the speech of others, not as speakers themselves.”
You’d think that would be common sense, but ISPs have a long, occasionally-successful history of hiding their dubious and/or anti-competitive shenanigans behind the First Amendment. Verizon has argued it has a First Amendment right to hand your call data over to the government. Comcast has argued its First Amendment rights are violated when it’s told to stop blocking competitor channel access to its cable lineup. Charter has tried to argue that requiring it adhere to local video franchise agreements similarly violates its free speech rights.
In the net neutrality case, ISP lawyers are basically throwing everything they can at the wall and hoping something sticks. But the First Amendement claim here is painfully thin, given it’s the ISPs interfering in content they didn’t create and have no real authority over. It’s also risky for ISPs currently protected by common carrier safe harbor protections to start arguing they’re responsible for every thought that’s transmitted over the Internet. It seems so much wiser for ISPs to stick to the kind of things they’re truly good at: like violating your Fourth Amendment rights at every conceivable opportunity.