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.

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Companies: at&t, verizon

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Comments on “FCC: Sorry, No — Net Neutrality Does Not Violate ISPs' First Amendment Rights”

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27 Comments
Kaelissays:

If ISPs want to say that the content they deliver is their speech, then prosecute them for all the child porn, terrorist communications, and other unsavory content sent over their networks that law enforcement assures us is omnipresent and threatening our safety and security. Then maybe we can start over and regulate ISPs properly this time.

Mike Masnicksays:

Re:

Uh, ISPs don’t have first amendment rights. Its pretty explicit, we the People…

Yes, companies very much do have First Amendment rights. That’s not the issue here. Also, you WANT companies to have First Amendment rights. Companies should also not be barred from speaking by the government.

The issue here is not that, but rather the idea that ISPs efforts to modify its networks are not a form of speech.

Chasissays:

Re: Re:

I don’t “WANT companies to have First Amendment rights” I’d like to have companies without such things, such that MY RIGHTS EQUAL SOME SOCIOPATHIC CEO’S RIGHTS. As it sits at present, they actually have more rights than I do, and don’t even have to conform to the same laws as I do, so my protections aren’t even equal.
I might want it, if I were a FASCIST, but I’m not. What are you, Mr. Masnick, Fascist or American?

Pronouncesays:

The Public Face of the Issue...

Hides the behind-the-scenes war. In my imagination I envision the Telcom good-ol’-boy network having lunch with Tom Wheeler and getting all red face over his turn-coat behavior. I love to think that the power structures gets torpedoed by someone with a little social good will. I know it’s a dream, but it still feels good.

Betasays:

Re:

To be fair, they’re not asking for that power. They’re not saying “you two may not exchange notes”, they’re saying “I won’t carry notes back and forth between you”.

(Actually, they’re saying “I’ll carry your notes more slowly than others and charge you more for them”, but the principle is “I won’t carry them”.)

Anonymoussays:

Companies got First Amendment Rights, but then, they deny others their Human Rights.

“Yes, companies very much do have First Amendment rights. That’s not the issue here. Also, you WANT companies to have First Amendment rights. Companies should also not be barred from speaking by the government.”

And Mike, while I agree with you in that they should have free speech (freedom of religion… companies don’t have that, do they? it’s their owners and employees), the problem is that they are asking for constitutional level rights, as if they were human. You know, some even claim that companies should have Human Rights.

When that shouldn’t be the case because, well, they aren’t human but entities. They should be entitled to rights, but no Human Rights nor Constitutional grade rights.

If there is a conflict between their rights and Human/Constitutional Rights, the latter should have priority.

Anonymoussays:

I’m not talking about the limits of your rights, but about the level (and priority) afforded to your rights.

Again, humans are humans. Companies are entities. Considering both equal under the law doesn’t make sense. Giving companies constitutional rights is almost similar to considering them citizens.

An example: there are cases of whistleblowers that get sued because they broke their NDA, even if it was to inform the citizens about what a company is doing that poses a risk to their lives (let’s say, they contain a chemical). Technically they are protected, but there have been approaches on the opposite:

https://www.techdirt.com/articles/20141016/07534628847/tpp-leak-confirms-measures-to-criminalize-corporate-whistleblowing.shtml

They cite their commercial rights, or industrial rights or whatever. All those rights should be ignored if any human right (life, speech…) is involved. That’s what I mean.

Also, think about this: you can jail a citizen. You can’t jail a company.

Mason Wheelersays:

It gets worse

Comcast recently filed a brief in which they claim that our communications–yours and mine–that flow over their network are their speech and that they therefore have a First Amendment right to exercise editorial control over it, that it would be a violation of the First Amendment for the government to force them to transmit speech that they do not agree with.

I believe the technical term for this idea is “crazy talk.” They are lacking the single most important prerequisite for any sane third party to agree with the idea that they have a right to exercise editorial control over our content: no one hired them as an editor! They were hired as a delivery service, and therefore their claim makes exactly as much sense as FedEx would if they were to hypothetically assert a First Amendment right to not ship a book that’s critical of FedEx that you or I bought on Amazon.

That One Guysays:

Re: It gets worse

As Kaelis pointed out, if they want to claim it’s their communications, then congrats, they’re now responsible for it, all of it. From the harmless chats between two people, to the absolutely illegal content that passes through their networks. However, you can be sure that they would insist that any illegal content is absolutely not their content, and they aren’t in any way responsible for it if someone tried to point out just how screwed they would be if their argument was accepted.

Basically they’re trying to have it both ways, arguing that the content is theirs when it comes to control of it, and absolutely not theirs when it comes to being responsible for it.

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