Balkinization  

Thursday, December 10, 2009

Net Neutrality and the 21st Century First Amendment

Marvin Ammori

Next Tuesday, the Federal Communications Commission is holding a “workshop” on the issue, as part of the important FCC rulemaking to codify “network neutrality.” The workshop’s title is, “Speech, Democratic Engagement, and the Open Internet.” Net neutrality, as I'll explain is of one of the most pressing First Amendment questions of our time, having an enormous impact on individuals' power to speak with one another, to organize politically, and to change society. Yesterday, the same day the USA Today had an excellent, comprehensive article about network neutrality, the cable industry's head lobbyist delivered a speech claiming that a net neutrality would violate the First Amendment.

This post (which is indebted to Ed Baker the way all my thinking on the First Amendment is) discusses some of the speech implications of network neutrality--both how net neutrality advances the speech interests of millions of Americans and the arguments that net neutrality burdens the speech rights of phone cable corporations.

It provides quite a bit of detail...


What is network neutrality?

The best general introduction may be yesterday's USA Today article (or this Jon Stewart clip).

Of note here, nearly every cyber scholar has written on network neutrality, including JB (and Lessig, Wu, van Schewick, and others) in favor and folks like Chris Yoo and Jim Speta against.

Phone and cable companies want to be “in charge of” the Internet; they want to be able to block user requests, charge software companies and websites discriminatory prices to reach users, and even cut exclusive deals (which could extend to details with, say, MSNBC.com over Fox News). Essentially, they want no rules.

A network neutrality rule, quite simply, would forbid the phone and cable from interfering with the Internet in these ways. If adopted with appropriate teeth, the rule would forbid Internet discrimination by providers of Internet access like phone and cable companies.

It’s a pretty simple and (in my view) an obviously good,innocuous, populist idea. But, because phone and cable companies are so powerful in DC, this issue is actually debated in Washington (and it's been a long, uphill slog so far).

The debate over network neutrality.

Network neutrality has been the most contentious tech policy issue in DC, resulting in (literally) hundreds of millions spent lobbying, several introduced bills, thousands of pages of comments, dozens of hearings, and a major FCC adjudication. In the process, well over a million Americans have declared their support for network neutrality, standing alongside groups as disparate as Moveon.org, the Christian Coalition, and the CEOs of Twitter, Facebook, Google, and Echostar. The conservative blogger Glen Reynolds, aka Instapundit, is part of the same coalition as Tim Wu, an Obama campaign advisor. Everyone from NPR to the Daily Show has covered it several times.

In addition, network neutrality was a presidential campaign issue. McCain supported the phone and cable companies, big campaign contributors. Senator Obama made his support for network neutrality the central pillar of his technology & innovation agenda that inspired the netroots, consumer organizations, and Silicon Valley. He said he would take “a backseat to no one” in his commitment on net neutrality.

Interestingly, during Justice Sotomayor’s confirmation hearings, a pro-network neutrality Senator asked the judge’s views on network neutrality and the freedom of speech. But the Court’s role will likely be small. The action will be at the FCC and Congress.

Network neutrality and the First Amendment.

Network neutrality is just one of the many important free speech questions being decided not in Supreme Court decisions but in laws yielding a “legislated First Amendment.” Congress and the FCC enact these telecommunications, media, copyright, and privacy laws shaping our speech networks. These laws, effectively, make tweeting or posting on Balkinization more or less possible.

Network neutrality, for example, ensures the Internet remains place where, in the Supreme Court's words, "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox."

But both sides of the network neutrality debate invoke the First Amendment.

On the one hand, network neutrality advocates argue that the policy advances First Amendment values through freedom of speech for all—democratic participation, autonomy, a marketplace of ideas, checking power, speech diversity.

Network neutrality, in short, translates the First Amendment for the 21st Century.

On the other hand, opponents claim that network neutrality violates the First Amendment rights of phone and cable companies.

Network neutrality promotes free speech.

The advocates, I believe, are right. (And I'm one of the advocates...)

Network neutrality promotes freedom of speech in several ways.

First, it ensures cable and phone companies cannot engage in online censorship. One of Canada’s largest phone companies, Telus, blocked a website run by a member of the Telecommunications Workers Union—during a workers strike by that union against Telus. While AT&T and Verizon want the power to interfere with the Internet, their track record isn’t great. AT&T silenced anti-Bush lyrics on an AT&T-owned website during a Pearl Jam concert. Verizon Wireless refused to honor a short-code text message from NARAL Pro-Choice to its own members, as Verizon has a policy against transmitting "controversial or unsavory" speech. As a senior White House official said: "If it bothers you that the China government does it, it should bother you when your cable company does it." Several officials said we cannot argue for democracy and free speech abroad if we do not respect net neutrality at home.

Second, violations of network neutrality raise the cost of speech, resulting in less egalitarian opportunity to speak, and therefore fewer speakers. For example, last year Comcast was blocking peer-to-peer transfers, including those using BitTorrent. This blocking raised the costs of content-providers who used peer-to-peer technologies to reduce the cost of transmitting online TV. Take, for example, speakers using Miro. Miro is open source video application first called the “Democracy Player,” distributed by the nonprofit Participatory Culture Foundation in Boston, whose goal is to “build a fairer, more open, and more democratic media space.” To belabor the point, their interests are speech-based, not economic. Users can access 4,000 “channels”, most high-definition, through Miro, and anyone can have a channel, from an individual to a large corporation. But Comcast was impeding users’ ability to use peer-to-peer applications like Miro, making it more costly for Miro to distribute content, and therefore less likely that individuals could distribute their own TV channels online. (Other peer-to-peer applications include Skype and Vuze.)

The First Amendment Argument Against Network Neutrality

In its landmark network neutrality order in the Free Press-Comcast case, which Jeff Rosen called a model for the free speech issues of our times, the FCC has already rejected the First Amendment arguments against network neutrality—the argument merited no more than a footnote (see note 203 of the order). Comcast hasn’t even appealed the First Amendment in its DC Circuit appeal.

Nonetheless, opponents of network neutrality raising the First Amendment question include, among others, an FCC Commissioner who thinks cable ownership limits trample on the First Amendment (you can watch his net neutrality argument here) and by the great Laurence Tribe (maybe the best longtime lawyer for the cable and phone industry). With such thoughtful opponents, the issue may be worth discussing.

These opponents argue that imposing a network neutrality rule implicates the First Amendment rights of phone and cable companies. Phone and cable companies, they say, have “editorial” rights to act as newspaper editors over the Internet and decide what speech to carry, and what speech not to carry. Requiring Comcast not to block file transfers is like requiring Comcast to say things Comcast doesn’t want to say. Net neutrality is like the classic forced speech cases requiring a schoolchild to pledge allegiance to the flag, despite her religious objections, or forcing a parade to include gay rights activists (here).

I think this argument is wrong. Whatever the speech or press rights of corporations, a first-year law student can tell you the cases are not analogous. Cable companies are not school children or parades; imposing a nondiscrimination rule on basic infrastructure like the Internet is not akin to forcing a child to violate her religious beliefs or a parade to change its character.

Keep in mind, cable companies will argue that even basic utilities-like price regulation violates their First Amendment rights.

But let's continue the analysis. Because network neutrality involves “forcing speech,” it should be judges under First Amendment doctrine, they say.

So first, is the rule content-based? They say yes—it aims to promote “diverse” speech The case law soundly rejects this argument. For example, the law requiring cable companies to lease access to independent channels was held content-neutral. (For just one link, see pages 294-305 of this paper.)

Second, if it’s content-neutral, does it pass the judicial test set forth in Supreme Court cases decided in the 1990s pertaining to the relationship between cable and broadcast television, Turner Broadcasting v. FCC? The Turner test requires an important interest and intermediate narrow tailoring. The important interest for net neutrality is the same interest found important in Turner—promoting the “widest possible dissemination of information from diverse and antagonistic sources.” The narrow tailoring prong—which is pretty lax when you read the case applying it, referred to as Turner II, in 1997—should be easily met. The FCC has more than enough evidence to demonstrate narrow tailoring and the Supreme Court doesn’t review the enormous record de novo.

But I don’t even think Turner applies. Turner applied to the one-way medium of television, not the two way medium of the Internet. However you read Turner, all nine Justices seemed to agree that common carrier regulation was constitutional. Common carrier regulation—a nondiscrimination rule analogous to network neutrality—was the traditional regulation applying to two-way communications networks like the phone network, rather than to one-way broadcast networks. As the dissent conceded: "it stands to reason that if Congress may demand that telephone companies operate as common carriers, it can ask the same of cable companies."

Moreover, the FCC agreed that Turner didn’t apply. In the FCC's Free Press-Comcast footnote (203) rejecting the First Amendment argument, the FCC wrote:
This prohibition [on blocking peer-t0-peer] does not prevent Comcast from communicating with its customers or others. Nor do we find Time Warner Cable’s analogy of a broadband provider to a newspaper to be apt. [citation] For one, the Commission is not dictating the content of any speech. Nor are we persuaded that Comcast’s customers would attribute the content delivered by peer-to-peer applications to Comcast, rather than attributing them to the other parties with whom they have chosen to interact through those applications. Under these circumstances, we find that our actions do not raise First Amendment concerns.

So the FCC--granted, the previous FCC under George W. Bush--rightly rejected the First Amendment arguments that Comcast has wisely abandoned on appeal.

But the FCC went further, getting it absolutely right on how net neutrality promotes free speech:
we believe that taking action to preserve the open character of the Internet “promotes rather than restricts expressive freedom” because it provides consumers with greater choice in the applications they may use to communicate and the content they may access. [citation] We therefore believe that our action today furthers First Amendment values; as the Supreme Court has stated, the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

But the phone and cable companies, and their lawyers, will be repeating their failed arguments.

Conclusion.

If the FCC gets it right, a network neutrality rule would preserve the practical freedom of speech Americans experience every day.

The FCC’s policy likely will have far greater effect on how Americans speak with one another and participate in our democracy than many Supreme Court cases anthologized in First Amendment textbooks.

The FCC hearing next week will help highlight that point—and hopefully put a nail in the coffin of arguments around the First Amendment rights of cable and phone companies to block speech.

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