Verizon’s First Amendment Arguments ‘Startling,’ Amici Say in Briefs Supporting Net Neutrality Rules

Verizon’s First Amendment arguments are “startling,” and the court should reject them, said a brief filed by former FCC Chairman Reed Hundt, former Commissioners Michael Copps, Tyrone Brown and Nicholas Johnson, and NATOA. Granting Verizon First Amendment rights over its networks would create a “sweeping immunity to forms of regulation long recognized to be constitutionally unproblematic,” they said. And Verizon’s arguments fail as a matter of constitutional principle, they argued: “That transmission enables someone else’s constitutionally-protected expression does not mean that it is itself Speech."

Brown said Verizon has argued “exactly to the contrary time after time,” including when they wanted open access to cable companies’ wires a decade ago. The problem is not so much that large corporations violate the law; it’s that they essentially write the laws through big campaign donations to Congress, said Johnson. “But it’s quite a stretch for Verizon now to argue that its disproportionate political power also gives it the right to rewrite the Constitution, and repeal the First Amendment rights of over 300 million Americans."

But the First Amendment argument is not Verizon’s main argument, said spokesman Ed McFadden. “While that’s an argument that was put forward in our filing, the core argument is that the FCC doesn’t have the statutory authority to impose those rules.”

The telco’s First Amendment arguments are “incorrect as a matter of law,” said the Center for Democracy and Technology, along with several First Amendment and Internet law professors. They argued the net neutrality rules don’t restrict Verizon’s own speech, “but only regulate its conduct as a conduit for others’ speech.” Broadband ISPs don’t have editorial discretion like newspapers or cable companies do; they are more akin to telephone companies, the filing said. The open Internet rules “protect everyone’s speech by requiring that it be transmitted without interference. To hold otherwise would call into question all of common carriage law, and threaten to give any actor with the physical or technical ability to block speech -- be it a telephone company or FedEx -- a First Amendment right to do so."

"Internet providers are claiming they have a First Amendment right that trumps their users’ free speech rights,” said CDT Senior Policy Analyst Andrew McDiarmid in a statement. “If they're successful, they get the power to decide what all of us get to say, see, and hear online. That would undermine the key feature of the Internet -- the ability of users and services at the edges of the network to communicate and innovate without having to seek permission from gatekeepers,” McDiarmid said.

The FCC does have statutory authority to establish its open Internet rules, said the Open Internet Coalition, Public Knowledge, National Association of State Utility Consumer Advocates, and Vonage. Section 706 of the Telecom Act asks the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans,” through methods that “remove barriers to infrastructure investment,” they wrote, quoting the Act. The main question, they said, is whether the open Internet rules fulfill Congress’s intent to remove barriers to infrastructure investment. “Verizon disparages the link between Internet openness and infrastructure, but its rhetoric cleverly obscures the fact that it does not deny the link."

"On the Internet, innovation requires no permission,” said a brief filed by Internet engineers and computer scientists, including Apple co-founder Steve Wozniak. Its openness is similar to the electricity grid, which treats Dell computers the same as Maytag refrigerators, and discriminates against neither, they said. The open Internet order is a “modest measure that preserves the economic, social, and civic benefits of an open and accessible Internet, while simultaneously ensuring that access providers have wide latitude to address their network’s needs.” Innovative applications lead to greater investment in network infrastructure, and innovation is only commonplace on the Internet because it’s a level playing field where users independently choose their preferred apps, the technologists said. Application-specific discrimination “strikes at the very foundation of the Internet’s ability to generate low-cost innovation and new markets,” they said.

"Erasing the line between publishers and transmitters, by granting Verizon the First Amendment protections reserved for publishers, would break sharply with more than a century of historical practice,” said Tim Wu, Columbia University law professor and former FTC senior adviser. His brief, filed by communications attorney Andrew Schwartzman, urged the court to conclude that Verizon is a transmitter, not a speaker. “It provides a service that moves content from one place to another, without actual knowledge of what it makes available,” Wu said. “Even if Verizon performed much more prioritization, it would not resemble a publisher, but merely begin to resemble Fedex, not the Wall Street Journal.” Holding the order unconstitutional would be “at odds with centuries of traditional oversight of both transportation and communications companies,” he said.