What Sotomayor Could Mean for Network Neutrality and the First Amendment

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 Moveon.org, 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 Moveon.org 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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Comments

[Brett Glass]

Marvin, it is highly insulting and disingenuous of you to claim that I and other ISPs intend to censor the Internet. Furthermore, the crippling regulation which your lobbying group is pushing on naive legislators via alarmist tactics would destroy many if not most small, competitive, and rural ISPs. (This would REALLY censor the Internet by cutting millions of users off from it altogether).

The perfectly reasonable network management practices in which I and other ISPs engage actually PRESERVE free speech on the Internet by keeping the price of service reasonable and the quality of service good. If the stifling, innovation-killing, competition-killing regulation you advocate were imposed, it would greatly harm free speech and there would be ample reason for the courts to void it.

[Kim Bjorkland]

Thanks for your response. My comments are as follows - backwards from your post:

3. The internet IS a network of interconnected networks - true. Who built those networks? Yes originally it was the government, BUT if you do the mathematics, you'll find that MOST of those networks were in fact commercially built - my guess would be 98%? Level 3, Worldcom, Verizon, GTE, Qwest, KPN, the list goes on... - spent over 200 billion the past 15 years building the internet, laying deep ocean cable, fiber into the ground, capacity planning etc etc. The internet is a 98% commercial adventure. The only thing 'open' is the protocol for these private commercial networks to handshake.

2. So on to the postal service analogy. Clearly your analogy doesn't work because the internet is not 100% built by the public. It's a series of fedex's and purulators that happen to have agreed on how to handshake packages from one network to the next. And fedex wants to limit your ability to send porn.

1. Now finally as for the ACLU -- They're treating the internet like a publicly built 'essential service'. Vint Cerf, and google are the biggest backers of 'net neutrality' - a PR story to help retain GOOG profits. If GOOGHOO are profitable, the ISP feel they missed out, so the distributor (isp) wants a higher share of the hot selling service by leveraging it's audience (you and I) that it has acquired through it's promotion and advertising.

[semiAdult]

OK it's early, comments normally appear as most recent first, I had more than 250 words and I didn't figure out to post the end before the beginning to make it read right. Sorry 'bout that. See below for appropriate confusion.

[semiAdult]

OK they won't post the first part of what was there. Apologies for the half-post, but I must have exceeded my authorization to think. I'll get over it.

[semiAdult]

This is called 'business' and is roundly congratulated among the 'winners'. When public 'demand' exceeds their 'predictions' of need, there's less 'supply', and price must go up. This makes sense while the very entities that profit can be assumed to have played the game fairly, which of course can't be. When law controls, and law is easily bought, there's nothing fair involved.

If a supplier supplies inadequate product, let them suffer failure. It escapes reason to impose profits legally. What's the value of a 'contract' when it's rigged?

Here's a thought. Businesses are NOT 'persons'. Businesses have no detectable 'morals' whatsoever beyond enrichment. Businesses neither read nor understand the Constitution, nor have any implied 'right' to life, liberty, or the pursuit of happiness. Saying that they do is possibly one of the core problems we SHOULD be thinking about here, and across most domains. Discuss among yourselves.

Simply applying the 'common carrier' meme that has generally served well -- ok it forces some to forego some profit alternatives, to the intended benefit of people (remember them?) -- renders this a non-issue. Lobbyists in droves may try to add hundreds of disclaimers/excuses to any law, but a clear direction towards anything goes a long way towards ignoring such side trips.

Here's the point. 'They' want to bill, without interference, however, forever. 'We' want systems that work for anything, without restriction. Any other point, and there are some, is subordinate at best, and noise most of the time.

Common Carrier.

[Kim Bjorkland]

"That is, do their rights trump the rights of citizens and users of media?"

I believe you said it yourself -- USERS of media -- not customers, owners, or proprietors of media.

I'm not sure why throughout this entire essay you didn't bring up the REAL backers and motivation of net neutrality? Google, Yahoo, et al do NOT want to lose out their control for accessing the customers of the ISP's. They argue - content is king. The ISP's argue, while content is king, distribution is KING KONG!

If Google, Yahoo, et al do not like the plans that the ISP's have to throttle their own systems or to interfere with the flow of traffic across their own systems (systems that they built, they paid for, they financed, they manage etc), then Google, Yahoo, et al can build their own internet -- or they too can block access from customers on the 'unfair' ISP's and limit their services to the ISP's they feel are fair.

If you compare this 'net neutrality' joke law to the newspaper business from 200 years ago, the argument would be 'newspapers are a public service, they should carry news from all parts of America, it's not fair for some newspapers to only report local news, and others to report news from afar. After all the trees that built those newspapers originally came from our common public assets balh balh balh blah"

[Marvin Ammori - Huffpost Blogger]

Hi Kim, I'm not sure why you're saying Google and Yahoo are "the REAL backers" but that the 80 groups in savetheinternet.com--from the ACLU to every consumer group in America--are not real.

And your metaphor about newspapers is wrong. The Internet network is more like the postal system, which was open and non-discriminatory. The applications are more like the newspapers. If the postal system refused to carry a newspaper, would you reply with the wonderful idea that the newspaper should build its own postal system? (I commend you to this book if you actually would like to learn: News in the Mail: The Press, Post Office, and Public Information, 1700-1860s--by Richard B. Kielbowicz­.)

One final thing is the phone and cable companies haven't built their own Internet. The Internet is a network of interconnected networks. Phone and cable companies merely provide access to that Internet.