In today’s landmark 7-2 decision striking down California’s ban on the sale or rental of violent video games to minors, Justice Scalia in his opinion for the majority takes the absolute view:
“Whether government regulation applies to creating, distributing, or consuming speech makes no difference,” he says in response to Justice Alito’s attempt to say that sale/rental is different from “creation” or “possession” of particular speech.
It is certain that this point of view will come up in communications litigation in the years to come. Here are the steps that might be followed:
Are the carriers distributing speech?: Surely they are, the carriers will argue. They will say that even if they don’t explicitly hold a front page meeting and pick and choose particular voices, they are distributing speech via their all-IP digital pipes.
Is a particular government regulation – say, a nondiscrimination requirement imposed on carriers requiring them to carry applications that compete with their offerings – a content-based restriction of speech?: Surely it is, the carriers will argue. The “content” is – well – a competing application. The government has particular interests that it’s trying to encourage through requiring that content to be treated fairly.
The key legal fight will be over this classification. If a regulation is content-based, then it triggers “strict scrutiny” and the regulation is very likely to be unconstitutional unless it falls within narrowly-defined limits. Indeed, once a rule is classified as content-based, the Supreme Court always strikes it down.
When the cable operators were fighting against obligations to carry broadcast channels on their systems, they failed to persuade the 1994 Supreme Court in Turner that the obligations were content-based. But they certainly persuaded then-Justice O’Connor, who in her dissent scoffed at the idea that anything other than protection of particular government interests was going on – and that therefore the regulation was indeed content-based. (As Justice O’Connor wrote, the government in protecting broadcast had expressed its preferences in detail, and “[p]references for diversity of viewpoints, for localism, for educational programming, and for news and public affairs all make reference to content.â€Â)
And then, if the regulation can be characterized as content-based, it will also be characterized as new-fangled. The carriers will argue that the regulation is not about obscenity, incitement, or fighting words. It’s new – it’s about forcing them to fairly distribute speech with which they don’t want to be associated.
And here Justice Scalia’s words, citing U.S. v. Stevens from last year, will come back again:
[W]ithout persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the “judgment [of] the American people,†embodied in the First Amendment, “that the benefits of its restrictions on the Government outweigh the costs.â€Â
Even though today’s opinion is about regulations prohibiting speech rather than regulations requiring speech, it’s likely that the carriers will be able to frame the debate their way:: We’d like to speak, to use all of our pipes the way we want to, without restriction. By forcing us to fairly carry speech with which we don’t want to be associated, you’re restricting our free use of our private communications medium.
Commr. McDowell’s dissent to last year’s Open Internet order makes clear that the carriers are ready with this argument, suggesting that imposing common carriage obligations on cable operators would violate the First Amendment – and that, in general, “broadband” providers have speech rights. Commr. McDowell asks, rhetorically, “[W]hat are acts such as providing quality of service (QoS) management and content filters if not editorial functions?”: And he’s pretty confident that nondiscrimination rules can be characterized as content-based (and hence subject to the highest level of First Amendment scrutiny):
“[W]hile rules governing the act of routing data packets might arguably be content neutral regulations, application of the rules in the real world may effectively dictate antecedent speaker-based and content-based choices about which data packets to carry and how best to present the speech that they embody.”
Today’s opinion may further strengthen the carriers’ arguments that any nondiscrimination requirement imposed on them should be struck down. Although a nondiscrimination requirement arguably promotes speech rather than proscribes it, the long-ago Turner case on “must-carry” obligations for cable already suggested that the valence of the requirement doesn’t really matter. (“Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.“) Marvin Ammori wrote a terrific article about all of this not long ago.
The FCC has taken this battle head on in its Open Internet Order. It has tried to choke the carriers’ argument off at its roots by saying that broadband providers aren’t speakers but are just conduits for speech:
The broadband Internet access service at issue here does not involve an exercise of editorial discretion that is comparable to cable companies’ choice of which stations or programs to include in their service. In this proceeding broadband providers have not, for instance, shown that they market their services as benefiting from an editorial presence. To the contrary, Internet end users expect that they can obtain access to all or substantially all content that is available on the Internet, without the editorial intervention of their broadband provider.
Today’s news is that the absolutist approach of the current Supreme Court to protection of speakers of all kinds – including distributors of speech – signals that the carriers will be likely to find a sympathetic ear there.
How do you think a similar challenge to Title II based nondiscrimination rules on telephone service would fare under this rubric?
You’re probably right to expect this of the carriers, and this court does have a particular history with respect to the First Amendment. Perhaps that predisposition can be used by the good guys? How about this: The government shouldn’t regulate speech except for very good reasons, and those reasons don’t obtain for telecom (so far, the carriers will probably stipulate). If typical FCC actions were about regulating speech (and recent controversial actions are certainly typical: if the FCC can’t study consumer satisfaction what the heck can it do?), it wouldn’t have a valid reason to exist. Since Congress suffers it to exist, typical FCC actions must not really be about regulating speech.
Which gets us close enough to the truth. I’ll admit that sometimes the FCC has regulated speech, for no good reason. Usually it just erects barriers to competition, because that’s what the telcos have brib^H^H^H^Hencouraged its commissioners and staff to do. In the last couple of years, however, it has belatedly noticed the reassembling telco monopoly with which this nation is cursed, and has explored some tentative ways to make that suck a bit less for consumers. If that is “regulating speech”, then so are all the many restrictions on radio usage that are stifling a true free market in wireless data connection, and let’s be done with all of it.
The error that you make – continue to make – in arguing for an “all packets are equal” rule for the Internet, is the assumption that all forms of communication have the same network requirements. They don’t, of course, but the network operational convention that net neutrality seeks to enshrine in law assumes they do. Therefore, the argument for a non-discrimination law is not only legally unsound, it’s technically harmful. It feels good to some people, apparently, but that’s not enough: It needs to be good as well.
I think Richard makes a fair point above, but I am thinking 1) that neutrality advocates are not that naive, and 2) the FCC took this into account with its “reasonable network management” provisions. I’m also thinking of Seth Johnson and others “Internet Distinction” argument, echoing the Google/Verizon wireline pact, that posited a general purpose Open Internet as distinct from other managed services. If that is the product offered one would imagine it would be hard to justify any restriction of lawful content. I don’t see how this precedent would make it different. That is not the company’s speech it’s a service. I don’t think the companies will fight it – what they WILL do is make the managed services a damn sight more attractive and convenient. I think the industry has learned its lesson on that front.
Now, whether going back to Title 1 and providing opening their networks to competitors restricts their speech I don’t know, but its not a content-based question but a common carriage one.
It will be interesting to see how the Court rules in FCC v. Pacifica. If it rules that the Commission’s indecency rules are vague and don’t comport with the notice requirement articulated by Chief Justice Roberts and Justice Alito in Brown, perhaps the stage will be set for the Court to rule that the Commission’s definition of “reasonable network management” is similarly imprecise.
Richard Bennet’s comment is, with due respect, technically ignorant. He is necessarily assuming a need for Network Owner control of packets, which is the only assumption that can justify his comment that all packets are not created equal. Why aren’t they, Richard? Of course they are as a matter of basic Internet protocol. I don’t think you understand the technology one bit. All packets certainly must be equal if end users control their information as intended by Internet design characteristics. And, moreover, they certainly would be equal if the rudimentary basics of fiber network technology are deployed and respected. The carriers profit from scarcity and scarcity of capacity is contrived nonsense. The money spent on electronics and other control mechanisms should be spent on fiber capacity. The real issue may well be this Administration’s policy incompetence and its lack of analysis and intellectual capacity. This problem, I believe, begins with Genachowski. Let’s start this Fourth with some honest and useful fireworks!
As a non-lawyer, my “common sense” interpretation of net neutrality is that it is not a restriction on content at all: it “locks open” the pipes *regardless* of content. It explicitly *rejects* considering content (or origin of content, which is a proxy for content) in determining the transport of data. (See NB comment below.)
Also, it seems obvious to me that data transport service providers are not speakers, unless they also provide some other sort of “speech” service separately. Mere vertical integration of two intrinsically separate businesses does not make a transport service into speech, IMHO. I think NN advocates would do well to persist in mandating this separation of data transport (infrastructure) from speech (communication). The owner of a toll bridge does not engage in transportation in the operation of the bridge, it merely facilitates it. Similarly, a data network service provider facilitates speech but does not engage in it, itself. The speakers are at the edges, and the data transport network is in between the edges. A vertically integrated company may also be active at the edges, but that edge activity is inherently distinct from its activity in between the edges. We must not allow these to be conflated simply because a single “legal person” engages in the two distinct activities.
When and where a speaker is not acting as a speaker, we should resist treating it as a speaker.
Finally, the main reason in principle that we don’t want the government to regulate speech is that it has a coercive monopoly, meaning “we have nowhere else to run” if it does so. If there is insufficient market competition in the provision of data transport services to the home or business, then there is a similar coercive monopoly (i.e., nowhere else to run) for what is by now a necessary service for normal engagement in society, and IMHO the general principle applies to the private sector as well as the public sector. In short, I don’t want the ISPs I am forced to use to gain access to the network to censor my speech or the speech of those whom I want to talk to me.
If it “walks like a duck and quacks like a duck” then it’s censorship as far as I’m concerned, as a private citizen, and whether it’s a public government or private firm that is doing it makes utterly no difference to me. The effect is identical.
Isn’t there some way to absorb this fundamental reality into the legal system?
NB: This does not prevent data management according to “packet type” in order to differentiate packets according to application, so as to address the concerns of those arguing that “treating all packets as equal” would be counterproductive. While there remain concerns for abuse of such practices (innovation in new applications might be suppressed if those applications require higher priority — i.e., best efforts for real-time delivery — than garden-variety messaging-type applications — cf. audio/video vs. email/web),perhaps those are not First Amendment issues (speech), but rather technological innovation issues (economy). Thus, those aspects of data transport presumably could be regulated without appeal to strict scrutiny.
NB2: Certain services that ISPs may provide in addition to data transport, such as spam filtering, are most appropriately considered edge services. Ideally these should be under full end-user control, if the end user wishes.