Wednesday, February 03, 2010

The Next Citizens United

Marvin Ammori

Last Friday, Cablevision filed a cert petition to the US Supreme Court in what may be the next Citizens United.

Citizens United, of course, in President Obama’s words, “opened the floodgates” for corporate money to overwhelm the political system. Almost 70% of Americans believe it hands even more power to lobbyists. Opponents of Citizens United (and previous cases leading to it) are considering and introducing remedying legislation.

But, you respond, the Internet remains. Citizens United’s infusion of corporate money will largely go to campaign TV ads and films. The Internet enables speech—through blogs and low-budget, individual videos that can go viral. It enables associations—as individuals find each other and form groups around issues and candidates. It can help aggregate small donors.

The Internet might not act as a perfect counterbalance, you say, but it’s a start.

That’s true. Unless this Supreme Court interprets the First Amendment to eliminate the openness we’ve always expected of the Internet. That is, the Internet was historically open and free to all users because of traditional telecommunications laws (Lemley and Lessig explain). The Bush II administration deregulated access to the Internet—lifting laws applying to AT&T (the largest donor to federal campaigns of any company) and Comcast. Deregulation for Internet access then worked about as well as deregulation of the finance industry—it’s been an utter disaster, placing our nation far behind other nations in terms of the speeds, availability, and cost of Internet access.

Deregulation also has threatened the openness of the Internet. Carriers like AT&T and Comcast have expressed a desire to “manage” other people's Internet sites and technologies however they want and to extort fees from providers of applications and content. This would undermine the traditional openness of the Internet. AT&T could decide to limit the videos available on YouTube or on a “conservative Youtube”—or could simply require everyone seeking to provide TV programming through the Internet to get permission from AT&T to be on the Internet. AT&T could impose a surcharge on every iTunes download—or every political donation—and charge campaigns and corporations for every political ad. As AT&T’s former CEO claims, the Internet is “their pipes” and AT&T doesn’t want anyone using those pipes without paying AT&T tribute.

In response to this threat to democracy, advocates and enlightened lawmakers have fought since the Bush II deregulation for a “network neutrality” law to keep the Internet open on all platforms, wired and wireless.

On Monday, the President reaffirmed—again—that he is a “big believer” in network neutrality, no matter how many angry lobbyists the carriers throw at him or the FCC. (He said it more politely, but unmistakably.) The President was answering a question about network neutrality—the number 1 question about the economy uploaded by users for an innovative online interview with the President.

How could the courts screw this up too? If the consumer advocates, scholars, and lawmakers can actually succeed in defeating the lobbying might of AT&T, Verizon, and Comcast, then the courts could overturn the result. You might think that the public’s free speech rights are implicated in their ability to use the Internet to communicate with whomever they want, however they want, through the Internet. But to these courts, the First Amendment belongs to powerful corporations.

Cable lobbyists have argued that cable and phone companies have a First Amendment right to block speech on the Internet. Really. They argue that a case called Turner Broadcasting, a landmark decision from 1997, imposes heightened constitutional scrutiny on any rule impinging on the carriers’ “editorial discretion” to block websites in offering access to the Internet. So even though bloggers, video-makers, and online news outlets might make editorial decisions, the cable or phone company is the ultimate constitutional “editor” of the Internet with inviolable free speech rights.

They argue Turner would likely impose intermediate scrutiny on any law meant to ensure diverse speakers online—namely an Internet openness rule. In doing so, Turner would not, however, promote the wide diversity of diverse and antagonistic speakers—the First Amendment’s most “basic tenet,” according to Justice Kennedy, author of Citizens United. Rather it would succeed in promoting the narrowest diversity of “speakers” controlling American speech—AT&T, Comcast, Verizon, Time Warner Cable, above all others. (I've discussed this elsewhere.)

The Cablevision petition for certiorari asks the Court to overrule Turner. Many (like me) view Turner as akin to Lochner, for imposing heightened scrutiny for rules where far more deference is required. But the cable industry views Turner as too soft a hammer. Rather than intermediate scrutiny, the industry seeks strict scrutiny for all rules. The industry is already pointing to Citizens United for its arguments, encouraging the Court to overrule another key speech precedent.

I could try to point to a silver lining. First, I doubt the Court needs to overrule Turner to reverse the FCC, as Cablevision has decent facts for an arbitrary and capricious challenge. But this Court doesn’t always miss an opportunity to transform the law.

Second, I believed that Turner might have applied to cable operators in providing cable TV services, but not to operators when providing Internet access service. This is because Internet access, like phone service, was historically subject to common carrier rules, removing all “editorial” discretion from Internet access providers, without implicating the First Amendment.

But I am now more skeptical of that silver lining, being reminded of our courts. A few weeks ago, I was involved in a case involving the FCC’s authority to impose a landmark network neutrality order on Comcast, for blocking peer-to-peer transfers. Comcast had not made a First Amendment argument on appeal; in the opinion below, the (then-Republican) FCC had rejected the First Amendment argument in a mere, belittling footnote, explaining how an open Internet obviously promotes the values of the First Amendment for all Americans. Nonetheless, a few minutes into Comcast’s oral argument before the DC Circuit, a judge asked: “cable operators have some First Amendment rights, and I don't see that playing out in this case at all.”

The Cablevision case is likely the first step on this path to "playing out" the First Amendment arguments--for carriers to block or interfere with Internet speech. We’ll see if the Supreme Court uses the Cablevision petition as an opportunity to step towards vindicating the “First Amendment right” of carriers to dominate all our channels of democratic discourse--from the TV of unlimited corporate expenditures to the Internet of unlimited carrier-control.


As an engineer who has enjoyed a good seat to watch the Internet develop (I was using it when it was ARPANET), I've seen many attempts to turn it from public to private good. The fact that it has managed to avoid that so far is encouraging. But the lesson of history is private interests will keep trying.

The idea that my carrier has a First Amendment right to censor me or those I want to hear would be laughable if it weren't for this history. As it is, it's not so funny. It just might work.

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