What Sotomayor Could Mean for Network Neutrality and the First Amendment

Senator Al Franken (D-Minn.), a member of the Senate Judiciary Committee, will ask Judge Sonia Sotomayor questions this week 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. These companies have announced a desire to cut special deals with Web sites, to slow some down, speed some up, and just block others. On wireless platforms, the carriers already limit Internet access, for example, by not permitting you to use Skype on the mobile Internet.

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 rule without a specific law passed by Congress first?

Judge Sotomayor's history is a blank slate on this, with very few hints.

1. 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 and the dicta and dissents of some Supreme Court justices and some 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 or for all Americans to use text, video and voice to communicate freely.

The key thing to know about the First Amendment is that it's 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-OK. 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, 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 of dollars lobbying on network neutrality. You convince lots of friendly members of Congress 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 lose 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 members of Congress some 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, 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 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 company that was blocking online Voip phone calls and a cable company (Comcast) that was blocking Internet tools for online TV and software distribution. President Obama can't take a back seat to that.

So you consult the lobbyist playbook for the usual Plan B: a lawsuit. You run to court and say, "This law is invalid." Sure, sure, the majority of Americans support the law, Congress or the FCC will have enacted it, and Moveon.org and the Christian Coalition will have performed songs in technicolor 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 that network neutrality violates the telcos' fundamental free speech rights. 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 degree of protection; and that 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 your company 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 Web site, newspaper or online phone call or movie. You have "editorial discretion": a First Amendment right to control the Internet. One cable company made this argument regarding the FCC's Free Press-Comcast decision, but the claim fell on deaf ears at the FCC.

On balance, the lobbyists tend to lose these cases in court, but they have won some major cases, and with this argument. Courts have struck down cable ownership limits (which restrict 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 telcos to "say" things they don't want by carrying certain TV channels without discretion, which some lobbyists cite as precedent for striking down network neutrality) .

Under Supreme Court precedent, the lobbyists are, in fact, wrong. At worst (for society), courts could apply the annoyingly confusing standard often applied to cable (called the "Turner" standard by us law geeks, and sometimes applied without much bite). But even Turner is completely inappropriate. Congress should have the same discretion with Internet access as it has had with phone companies. Congress traditionally regulated phone companies as "common carriers," which means that 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 that all Americans have access to communications infrastructure 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 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 those of the public overlap -- if Congress were to forbid cable companies from carrying channels that criticize the bank bailout or the stimulus bill, for example. 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 should 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 first?

Let's say Obama's FCC, headed by his pro-network neutrality classmate and top tech adviser, 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, but thanks to the Bush FCC, it is. 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 service was an unregulated computer service, kind of like Google or Mozilla Firefox, rather than a "telecommunications service," as the Democratic FCC had concluded for DSL. This matters. Congress gave the FCC authority to regulate "telecommunications services," but the FCC only has oversight of an unregulated computer service through something called "ancillary jurisdiction." In adopting its most recent network neutrality order regarding 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 on the basis of 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 agency to reverse the Bush-era decisions first, before implementing network neutrality, thus slowing down the president's agenda -- and the overwhelming majority supporting network neutrality.

So, how do you understand the limits and scope of ancillary jurisdiction as applied to the regulation of Internet access?

This blog post was originally posted on the Huffington Post. Marvin Ammori is a legal scholar and expert in cyberlaw, the First Amendment and telecommunications policy. Marvin works closely with the legal team at Free Press.