A recent U.S. Supreme Court ruling that throws out limits on corporate political-endorsement spending is giving new hope to opponents of net neutrality regulation proposed by the U.S. Federal Communication Commission.
In Citizens United v. Federal Election Commission, the Supreme Court on Thursday reaffirmed earlier rulings granting corporations free-speech rights, by saying a limit on spending for endorsements for candidates violates those rights. While Citizens United has nothing to do with net neutrality rules, opponents of the FCC's proposal say the court appeared to strengthen corporate free-speech rights in a way that could apply to net neutrality.
Net neutrality backers, however, say that people looking to the Citizens United case for direction on net neutrality are stretching the definitions of free speech and exaggerating the role of broadband service providers. "It'd be kind of funny, if we didn't have to keep responding to some of these arguments," said Corie Wright, a lawyer for Free Press, a media reform group that supports net neutrality rules.
Under the FCC's proposed net neutrality rules, broadband providers would be prohibited from discriminating against any legal Web content and applications. Some net neutrality opponents have argued that the FCC, by forcing them to carry other content, would violate their free-speech rights, and the Citizens United ruling makes that a stronger argument.
Broadband providers aren't classified as common carriers under FCC rules, meaning there've been no requirements that they carry all traffic, said Michael Wendy, media relations director at Computing Technology Industry Association (CompTIA), a trade group that has questioned the need for net neutrality rules.
"I think that the FCC's rules may hinder the speech rights of ISPs [Internet service providers]," said Wendy, a former director of government relations at the United States Telecom Association. "To me, I see facilities-based ISPs ... somewhat akin to private movie theaters, galleries or newspapers. We don't tell the gallery owner to hang other people's paintings, no matter how important those messages might be."
While there's not a direct link between the Citizens United case and net neutrality, the Supreme Court ruling "has to put the FCC on guard," Wendy added.
An FCC spokeswoman declined to comment on the Citizens United case, but Wendy is not alone in making this free-speech argument against net neutrality. Even before the Citizens United ruling, some conservative think tanks, the National Cable and Telecommunications Association and constitutional law professor Laurence Tribe have made similar arguments.
The First Amendment to the U.S. Constitution, guaranteeing free speech, does not give the government a role in ensuring that all voices have equal access to audiences, Tribe and high-profile lawyer and Supreme Court watcher Thomas Goldstein wrote in comments filed with the FCC.
A net neutrality rule "interjects the government into private decisions about speech," Tribe and Goldstein wrote. "A central purpose of the First Amendment is to prevent the government from making just such choices about private speech."
Free Press' Wright said those arguments confuse the role that ISPs have as Web site publishers with their role as network operators. She acknowledged that broadband providers have limited functions, such as publishing their own Web sites or blogs, that enjoy free-speech rights.
But the net neutrality rules as proposed would create no limits on the ability of ISPs to publish their own Web sites, she said. The arguments that the ISPs' traffic-carrying role is speech is "so fundamentally at odds with the facts in the law," Wright said.
First Amendment law has generally recognized a fairly narrow set of expressive activities as speech, she said. "The mere routing of data packets is not inherently expressive," Wright said. "It doesn't express an opinion or an idea or a viewpoint of the cable operator. They're basically shuttling other peoples' content back and forth."
The Citizens United case is "not so far-reaching that it converts nonspeech into speech," Wright added.
In addition, ISPs have long argued that they have no control of what moves over their networks, particularly when threatened with lawsuits over copyright infringement on their networks, Wright said. ISPs have consistently argued they have no legal responsibility for the content that moves over their networks, and the Digital Millennium Copyright Act of 1998 exempts ISPs from liability for copyright violations by their subscribers, she said.
"They're basically contradicting themselves," she said. "You can't have it both ways. You can't claim First Amendment protection so that you can discriminate against whoever you want to, then claim you're not an editor in order to not get sued by people when there's some kind of harmful conduct that happens online."
ISPs should think twice before arguing their network transport function is also their speech, unless they want to open themselves up to all kinds of lawsuits based on what subscribers say and do, she said. "If I was counsel for the companies that are making this First Amendment argument, I would tell them to stop because they're going to get themselves in a lot of hot water," Wright said.
ISPs also are protected from libel lawsuits involving subscribers, because they don't control the content, added Andrew Jay Schwartzman, president and CEO of the Media Access Project. a digital rights law firm and advocacy group that supports net neutrality rules.
The Citizens United case focused on a video distributed by opponents of former U.S. presidential candidate Hillary Clinton. Unlike the ISPs' traffic-carrying function, Citizens United had a message it was seeking to spread, Schwartzman said.
"Since ISPs are a mere conduit for speech of other people, chosen not by them but by their customers, they don't have any rights as speakers," Schwartzman said.
Still, some groups have argued that the Citizens United case signals a new direction that the Supreme Court could take involving the free-speech rights of corporations. The Supreme Court's majority opinion in the case talked about Federal Election Commission regulations that acted as a government restraint on free speech.
Net neutrality rules could create a "regulatory labyrinth" that in effect chills the free speech of ISPs, said Seth Cooper, a lawyer and adjunct fellow of the Free State Foundation, a free market-oriented think tank.
"Adoption of an ambiguous set of net neutrality regulations that would require several rounds of FCC rulings to flesh out their meaning is problematic because, in the meantime, speech is chilled by the ominous presence of such regulations and potential sanctions," Cooper wrote in a policy paper for the foundation.
The questions brought up by Citizens United are complicated ones, and whether the case applies to net neutrality depends on what the net neutrality rules eventually look like, added Barbara Esbin, director of the Center for Communications and Competition Policy at the Progress and Freedom Foundation, another anti-regulation think tank.
ISPs have multiple roles, and at least part of their business model is protected by the First Amendment, she said. "This First Amendment issue, it's not a slam dunk by any means," she said. "But it's growing in heft now that the Citizens United decision has come out."