CBIT White Paper: How Net Neutrality Invites the Feds to Ignore the First Amendment & Censor the Internet

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Executive Summary

Is watching Netflix on the broadband Internet more like (A) watching cable television or (B) talking on the telephone? Common sense suggests the answer is “A”, the court that overturned the previous open Internet rules[1] chose “A”,[2] and the First Amendment demands it. The Federal Communications Commission (“FCC”) nevertheless chose “B” in the Second Internet Order:[3] It concluded the Internet is the functional equivalent of the public switched telephone network and is subject to the common carrier regulations in Title II of the Communications Act of 1934.

If the FCC had admitted the Internet offers communications capabilities that are functionally equivalent to the printing press, mail carriage, newspaper publishing, over-the-air broadcasting, and cable television combined, it would have been too obvious that classifying broadband Internet service providers (ISPs) as common carriers is unconstitutional. Like all other means of disseminating mass communications, broadband Internet access is a part of the “press” that the First Amendment protects from common carriage regulation.

The Supreme Court has only upheld government intrusions on the freedom of the press that were limited in scope and justified by detailed factual findings of scarcity or express agreement. For example, in Red Lion, the Court ruled that a scarcity of available broadcast frequencies was enough to justify a relatively limited intrusion on the editorial discretion of over-the-air broadcasters,[4] and in Turner II, it ruled that a Congressional finding of monopoly market power was enough to justify the imposition of access rights on up to one-third of the capacity of large cable networks.[5]

The unprecedented restrictions imposed by the open Internet rules eviscerate the freedom of the press without regard to scarcity. In the Second Internet Order, the FCC expressly disclaimed any intent to find that ISPs have market power. It instead relied on the ideology of “gatekeeper control” to justify its total ban on the editorial discretion of ISPs. This ideology presumes that all content providers who wish to use a particular system for disseminating mass communications require a government-mandated right of free access to all other users of such systems at all times in order to survive, innovate, and compete.[6] Its corollary presumption is that the operators of mass media communications systems have no recognizable interest, constitutional or otherwise, in exercising editorial discretion.

No matter how appealing this ideology is to the FCC, there is little to no chance that its open Internet rules will withstand First Amendment scrutiny on this basis. Government attempts to impose total bans on free expression are presumptively invalid, and “gatekeeper” status is not enough to overcome this presumption. The ability to exercise gatekeeper control is a common feature of most mass communications systems. Cable operators, broadcasters, and newspapers all have the ability to exercise gatekeeper control over their audiences, yet the Supreme Court has repeatedly affirmed that these media have a constitutional right to discriminate against the speech of others. If a reviewing court were to uphold the FCC’s claim that gatekeeper status is a “special circumstance” warranting a total ban on editorial discretion, the same reasoning could be used to justify corresponding bans on the editorial discretion of cable operators, broadcasters, and newspapers, and the freedom of the press would lose all meaning.

The FCC attempted to bolster its weak First Amendment case by declaring that ISPs are not entitled to freedom of expression in the first place, but its declaration does not meet the straight face test. The FCC does not deny that ISPs disseminate mass communications, including newspaper print and video programming, or that ISPs have the technical ability to exercise editorial discretion. It instead claims that, if the operator of a system for disseminating mass communications does not exercise a sufficient degree of editorial discretion for a sufficient period of time, the operator forfeits its First Amendment rights in perpetuity. This “editorial quality” theory presumes the press is entitled to First Amendment protection only if it consistently exercises editorial discretion of sufficiently high quality; otherwise, the government is permitted to force the press into becoming a mere conduit for the speech of others.

Like the ideology of gatekeeper control, the editorial quality theory is antithetical to Supreme Court Precedent and fundamental First Amendment principles. The application of the First Amendment to particular types of communications systems has never turned on the perceived quality of the editorial function that their operators choose to offer. Well over a century ago, the Supreme Court drew the relevant constitutional distinction between communications systems that disseminate information to the masses (e.g., the printing press and the Internet) and those that provide private, point-to-point communications between individuals (e.g., telegraphy and telephony).[7] A wholesale printer has as much right to the freedom of the press as the New York Times, because all printers have the ability to publish communications for mass dissemination. The carriage of newspapers through the mail is also protected by the First Amendment — even though it has traditionally involved little curation of content — because the freedom of the press to publish would have little meaning if the government could restrict the freedom to circulate the resulting publications.[8] The First Amendment freedom of the press to publish and circulate are applicable to the Internet for the same reasons.

The FCC’s attempt to equate the Internet with the public switched telephone network as a matter of statutory interpretation does not alter the First Amendment analysis or undermine traditional principles of common carriage. The application of common carrier regulation to telegraphy and telephony was not based on the editorial quality theory. These tele-services were subject to non-discrimination obligations because they were physically incapable of disseminating the types of mass communications that are protected by the Press Clause.[9] Only the operators of systems that disseminate communications intended for public consumption (e.g., newspapers) have a constitutional right to discriminate against the speech of others through the exercise of editorial discretion; and neither telegraphy nor traditional telephony could deliver newspaper print or video programming directly to the people in a manner similar to mail carriage, over-the-air broadcasting, or cable television.

This distinction is embedded in the language of the First Amendment itself and fully reflects its values. The First Amendment prohibits Congress from abridging either “the freedom of speech” (the Speech Clause) or the freedom “of the press” (the Press Clause).[10] The purpose of the Press Clause is to protect the conduct of owning or operating means of publishing and disseminating mass communications from government interference.[11] The Constitution expressly includes this freedom in a separate clause because governments had historically censored speech by controlling the physical machinery used for mass communications. For example, under English law, using a printing press without a license was once a crime.[12] The Constitution reflects the people’s determination that whatever risks attend private control over the means of mass communications are preferable to the risks of governmental control.[13]

The FCC’s First Amendment rationale eviscerates this determination by inviting the government to once again censor speech by controlling the means of its dissemination to the masses. Declaring that ISPs have no First Amendment right to exercise editorial discretion has the effect of giving the government power to censor the entire Internet.[14] It is a settled principle that no person has a constitutional right to access a mass communications system owned or operated by another person or the government. This principle indicates that, to the extent end users have a constitutional right to challenge government regulation of ISP transmissions, their rights are derived from those possessed by the ISPs themselves.[15] As a result, if ISPs have no right to challenge a regulation that prohibits them from transmitting a particular viewpoint, content providers and consumers have no right to challenge the regulation either. Under the FCC’s rationale in the Second Internet Order, no one has standing to challenge government censorship of ISP transmissions.

To avoid this anomalous result, a reviewing court would be required to overturn or ignore Supreme Court precedent holding that there is no constitutional right to access mass media communications. That would make the Second Internet Order a landmark First Amendment case that would be almost certain to garner Supreme Court review. Given the strong preference of lower courts for following Supreme Court precedent when deciding constitutional issues, the FCC is is very likely to lose on First Amendment grounds in an initial appeal of the Second Internet Order.

Discussion

ISPs are entitled to First Amendment protection

It is a fundamental First Amendment principle that the operators of mass media communications systems have a right to exercise editorial discretion. Well over a century ago the Supreme Court held that the decision to act as a conduit for the dissemination of mass media communications by carrying newspapers in the mail “necessarily involves the right to determine what shall be excluded” from carriage.[16] The Court has since applied this same principle to each mass media communications system it has considered under the First Amendment.[17] Based on its existing precedent, there is no reason to doubt the Court will likewise hold that ISPs have the same right to discriminate against the speech of others through the exercise of editorial discretion.

It is beyond question that the Internet is a means of disseminating mass media communications. The Internet simultaneously offers functionality that is substantially similar to the delivery of newspapers through the mail, the broadcast of radio and television programming, and the transmission of cable programming; and there is mounting evidence that the Internet is replacing these forms of media distribution. The Internet is replacing broadcast and cable services as means to disseminate music, video, and talk radio programming — a development that has prompted the FCC to consider whether online video distribution should be regulated like a multichannel video programming distribution (MVPD) service (e.g., satellite television)[18] — and it has already eclipsed the traditional role of the postal service in the dissemination of newspapers to the reading public.[19]

This shift has seismic implications for the freedom of the press. Internet convergence has blurred the traditional boundaries between publishing and disseminating speech printed on paper, which is fully protected by the First Amendment, and communications businesses that are extensively regulated by the government.[20]

The declining dominance of print media is a cause for concern, for they are the media that in the United States and elsewhere in the free world enjoy autonomy from government. It matters that people are increasingly getting their news and ideas through governmentally controlled media.[21]

“The dikes that in the past held government back from exerting control on the print media are thus broken down.”[22]

ISPs are constitutional speakers

There should likewise be no doubt that ISPs are speakers who are entitled to First Amendment protection. The FCC’s contention that ISPs do not deserve protection because they are mere “conduits for the speech of others”[23] is antithetical to the liberty of circulation, which protects the mere conduct of operating a system that is capable of disseminating mass communications.[24]

It is also factually erroneous. It is a matter of fact that ISPs have exercised editorial discretion while providing broadband Internet access service. A prime example is Jnet, a broadband ISP that automatically blocks access to certain Internet sites based on their content. According to Jnet, it engages in viewpoint-based discrimination because “there is a large segment of the Jewish community that has avoided the Internet entirely, and many more that are rightly concerned about using the Internet” due to its objectionable content.[25] Jnet does not offer its end users the ability to bypass, disable, or route around its filtering system — a decision that appears to be Jnet’s primary selling point.[26] The content curation provided by Jnet is thus similar in scope to that provided by television broadcasters and cable systems.

It is constitutionally irrelevant that Jnet appears to be an outlier. To the extent ISPs have refrained from exercising their right to editorial discretion, the FCC’s factual findings in the Second Internet Order indicate that their restraint was induced or compelled by the government. The FCC found there is a continuing need for open Internet rules because ISPs would have exercised editorial discretion if the FCC had not previously prohibited or discouraged it. According to the FCC, the previous open Internet rules “helped to deter [ISPs’ exercise of editorial discretion] while they were in effect” and, but for those rules, ISPs would already be engaging in “such conduct.”[27]

Previous FCC decisions show it has been chilling ISP speech ever since it began deregulating broadband Internet services.

  • When the FCC declared that cable ISPs are not common carriers in 2002, it simultaneously asked whether and to what extent it should restrict their editorial discretion.[28]
  • When the FCC extended the cable broadband ruling to telephone companies in 2005,[29] it simultaneously issued an Internet Policy Statement announcing that it would take enforcement action if it observed ISPs exercising editorial discretion[30] — a threat the FCC fulfilled in 2008, when it ruled that an ISP had acted unreasonably by interfering with peer-to-peer traffic.[31]
  • From 2005 to 2011, the FCC used its merger review process to impose binding open Internet obligations on the largest ISPs, including AT&T, Verizon, and Comcast.[32]

In these circumstances, the FCC’s assertion that ISPs do not exercise editorial discretion evidences nothing more than their compliance with FCC rules and policies. It has no probative value with respect to their constitutional status as speakers.

The protections of the First Amendment would be rendered meaningless if the people could be forced to forfeit their rights to free expression by virtue of their compliance with government restrictions on speech. For example, assume English law had required colonial newspapers to publish all community opinions in the order received, and that most newspapers had maintained the practice for some period of time after the First Amendment was ratified. Based on the reasoning in the Second Internet Order, newspapers would not be entitled to the freedom of the press: They would have forfeited that right by acting as conduits for the speech of others during their transition from the customs of English rule to liberty.

It would be similarly absurd to conclude that ISPs have forfeited their right to speak by voluntarily choosing to remain silent. “[A] private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech.”[33] Silence itself can be a powerful form of expression.[34] Holding that a voluntary vow of silence is enough to foreclose the constitutional right to speak in the future would chill silence as a means of sending a message. If we are to protect the full panoply of expression, the past silence of a speaker can have no legal relevance under the First Amendment.

The only relevant question is whether ISPs have the ability to speak prospectively, a fact the FCC has conceded. In the Second Internet Order, the FCC expressly found that ISPs have “the technical ability” to speak through the exercise of editorial discretion.[35] It could hardly have done otherwise: If ISPs could act as nothing more than conduits for the speech of others in the absence of government intervention, the open Internet rules would have been entirely unnecessary. The inherent contradiction between the FCC’s factual finding that ISPs have the ability to speak and its legal conclusion that ISPs are not constitutional speakers who deserve First Amendment protection is a self-serving attempt by the agency to have its constitutional cake and eat it too. If the open Internet rules are truly necessary to prevent ISPs from exercising editorial discretion, then it is axiomatic that ISPs are constitutionally-protected speakers.

The Press Clause protects the dissemination of mass media communications

Even if the FCC’s conduit theory has merit in some circumstances, it is inapplicable to the transmission of mass media content by ISPs. There is no constitutional distinction between conduct and speech with respect to the dissemination of mass media communications.[36] As noted above, the “press” merited disjunctive mention in the First Amendment because governments had historically restricted speech through laws controlling the physical machinery of the printing press itself.[37] The Constitution included the Press Clause to ensure that mere operation of the “potentially dangerous technology” of the printing press “was protected alongside direct in-person communications.”[38]

The operators of mass media conduits do not need to separately demonstrate “status as a speaker”[39] to invoke the protections of the Press Clause, because their conduct is inextricably intertwined with speech.[40] The Press Clause does not contain a qualitative distinction between the intensive editing performed by a newspaper that owns and operates its own printing press and a printer who offers wholesale publishing services with minor copy editing. A wholesale press operator and the New York Times are both entitled to First Amendment protection.[41] “We know from experience that ‘liberty of the press is in peril as soon as the government tries to compel what is to go into a newspaper,’” whether the content at issue is an eloquently written editorial or a crude advertisement.[42]

That peril is not limited to newspapers, the particular type of editing they perform, or the conduct of publication. The First Amendment also favors dissemination.[43] Supreme Court cases addressing the interests of owners of communications systems that disseminate mass media communications uniformly hold that such owners have a constitutional right to exercise editorial discretion. For example, in Ex parte Jackson, the Court held that a federal statute prohibiting the mailing of documents about lotteries did not violate the First Amendment.[44] The Court concluded that the power of Congress “to establish post-offices and post-roads” includes the power to designate “what should be carried,” and that “the right to designate what shall be carried necessarily involves the right to determine what shall be excluded.”[45] The Court derived the right of the postal service to discriminate against the speech of others from the rights of private carriers. As Justice Holmes described it, “if the Government chose to offer a means of transportation which it was not bound to offer it could choose what it would transport.”[46]

The Court subsequently held that the right of mass media conduits to discriminate on the basis of content applies to over-the-air broadcasting[47] and cable television systems as well.[48] The Court has consistently recognized that “the First Amendment, the terms of which apply to governmental action, ordinarily does not itself throw into constitutional doubt the decisions of private citizens to permit, or to restrict, speech—and this is so ordinarily even where those decisions take place within the framework of a regulatory regime such as broadcasting.”[49] There should likewise be no doubt that this constitutional principle applies to the Internet.

There is a constitutional distinction between mass media and common carrier communications

In his amicus brief in Verizon v. FCC, law professor Tim Wu posited that the right of ISPs to exercise editorial discretion is inconsistent with precedent imposing non-discrimination obligations on telegraph and telephone companies.[50] In his view, the distinction between communications systems that are entitled to First Amendment protection (e.g., broadcast and cable television) and those that are not (e.g., telegraphy and telephony) should be based solely on the quality of editorializing offered by their operators. The application of the editorial quality theory leads him to believe that, if the courts were to hold that ISPs are entitled to First Amendment protection, the courts would be required to apply the First Amendment to telephony for the same reason.[51]

If the editorial quality theory of the First Amendment were consistent with judicial precedent, professor Wu’s point regarding the application of common carrier law to telephony might warrant consideration. Under existing precedent, however, there is no need for a court to address his hypothetical inconsistency. The constitutional distinction between the transmission of video programming on the one hand and telephony on the other is based on the type of speech they disseminate, not the degree of editorial discretion they choose to exercise. Non-discrimination obligations were applied to telegraphy and telephony because tele-services traditionally offered a means of private “inter-communication” between individuals only.[52] As a purely factual matter, they were technologically incapable of publicly disseminating speech directly to the masses like broadcast and cable television.

Jackson impliedly recognized this critical distinction in its constitutional analysis of mail carriage. The Court began by distinguishing between the transportation of sealed mail that is intended to be kept free from inspection (e.g., letters) and unsealed mail that is open to public inspection (e.g., newspapers). It concluded that sealed mail is protected by the Fourth Amendment right against searches and seizures “as if they were retained by the parties forwarding them in their own domiciles,” but that the “transportation” (i.e., dissemination) of unsealed mail by the postal service was protected by the First Amendment.[53] The Court held that the postal service was entitled to the freedom of the press with respect to its carriage of unsealed mail even though its decision to provide a conduit for the transportation of mail does not automatically require it to fully curate or select the content its customers send and receive.[54] The Court held that the freedom of the press includes the mere transportation of mass media communications because the “[l]iberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.”[55]

The constitutional line drawn between sealed and unsealed mail in Jackson is the basis for the traditional distinction between common carrier and mass media communications, respectively. A provider of plain old telephone service does not have a First Amendment right to exercise editorial discretion over an ordinary telephone call because it is a private, one-to-one communication that is not intended for public consumption. In contrast, a cable operator has a First Amendment right to exercise editorial discretion over the video programming it disseminates, even if the cable operator is essentially acting as a conduit for the speech of others, because cable content is intended for consumption by the masses.[56] The Jackson distinction recognizes that “restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest.”[57] It also recognizes that, as a practical matter, the contents of private communications are generally protected from government interference by the Fourth Amendment whereas mass media content is not.

The Court applied this distinction to telephony in Katz v. United States, which held that government surveillance of words spoken into a telephone receiver by a person who was using an otherwise public telephone booth constituted a “search and seizure” under the Fourth Amendment.[59] In Katz, a case that has been described as “the most important [Fourth Amendment] case since Ex parte Jackson,”[60] the Court concluded that a person making a telephone call is “entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”[61] Katz determined that, like the transportation of sealed letters in the mail, telephone calls are inherently private communications with no public aspect — something that cannot be said of mass communications that are transmitted over the open Internet.

The same distinction is reflected in Jackson-era court decisions analogizing telegraphy and telephony to the common carriage of goods and persons by railroads. The court considered them close analogs because tele-services were capable of transmitting a particular communication from only one person to one other person just as railroads transported a particular good or person from one place to another.[62] The 6th Circuit thought the analogy was even more “applicable to telegraph companies than to telephone companies, for the one receives and sends a message, the other merely supplies the facilities by which the user may extend the compass of his own voice.”[63] The court’s description of telephony as a means of extending the range of one’s voice is perfectly consistent with Katz’s decision to treat telephone calls as inherently private communications.

Similarly, in Pensacola Tel. Co. v. Western Union Tel. Co., a case decided the same year as Jackson, the Supreme Court considered the transmission of private communications by telegraphy or telephony to be a commercial activity with more similarity to the delivery of sealed mail or the transportation of packages by rail than a means of expressing ideas through mass communications.[64] Though it did not expressly address the First Amendment, the Court held that telegraphy was a form of “commercial intercourse” that could be regulated by Congress under the Commerce Clause.[65] The Court cited several facts to support its conclusion, including the fact that “more than eighty percent of all the messages sent by telegraph related to commerce,”[66] but made no mention of the use of telegraphy to disseminate mass media communications.

The Supreme Court has implicitly recognized that the Press Clause protects the mere transmission of mass media communications in the cable context as well. In Turner I, the Court acknowledged that, “once the cable operator has selected the programming sources, the cable system functions, in essence, as a conduit for the speech of others, transmitting it on a continuous and unedited basis to subscribers.”[67] It nevertheless held that both the Speech and Press Clauses applied to the operation of cable television systems.

There can be no disagreement on an initial premise: Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment.[68]

Just as the decision to carry the mail “necessarily involves the right to determine what shall be excluded,”[69] the Court held that a cable operator’s decision to transmit programming includes a constitutionally protected right to exercise editorial discretion.[70]

Supreme Court precedent thus indicates that, when determining whether the Press Clause applies, editorial quality is constitutionally irrelevant. Like mail carriers, broadcasters, and cable operators, ISPs are entitled to First Amendment protection because they disseminate mass media communications. Whatever relevance the FCC’s conduit theory might have in the context of telegraphy or telephony, it is inapplicable to the dissemination of mass communications by ISPs.

End users do not have a constitutional right to access ISP networks

The question of whether ISPs have a right to invoke the First Amendment has enormous constitutional implications. If the FCC’s decision were allowed to stand, the government would be free to prohibit content providers and consumers from transmitting particular viewpoints by enacting regulations that censor ISP transmissions based on content. The FCC’s decision to grant content providers and consumers a right of access to ISP networks through regulatory decree does not grant them a corresponding constitutional right to invoke the protection of the First Amendment for content they transmit over ISP networks. No one has a First Amendment right to communicate using mass communications systems or facilities owned or operated by another person, and in the absence of a constitutional right to send and receive ISP transmissions, no one has standing to challenge government efforts to censor them.[71]

Supreme Court cases involving the freedom of the press have dealt with governmental efforts to restrict the operators of mass media communications systems, not governmental efforts to protect the right of other people to access such systems,[72] because there is no First Amendment right to access mass media facilities.[73]

Drawing an analogy to the print media, for example, the author of a book is protected in writing the book, but has no right to have the book sold in a particular bookstore without the store owner’s consent. Nor can government force the editor of a collection of essays to print other essays on the same subject.[74]

Even in the broadcast context, which has traditionally been subject to a lower level of First Amendment protection, the Supreme Court has refused to hold that the government or any individual member of the public has a right to use private broadcast systems to transmit their views on any particular matter.[75]

The Court has repeatedly refused to recognize a constitutional right of access to mass media facilities even when the facilities are operated or controlled by the government itself. In its decision upholding a federal statute prohibiting the mailing of lottery materials in Jackson, the Court considered the possibility that, because the government had given itself a monopoly over the delivery of the mail, its exercise of editorial discretion could have the effect of completely foreclosing the transportation of speech with respect to lotteries.[76] The Court recognized that, if Congress could prohibit the transportation of newspapers over postal-routes by mail and private carrier alike, “the circulation of the documents would be destroyed, and a fatal blow given to the freedom of the press.”[77] The Court concluded that this possibility was insufficient to overcome the government’s exercise of editorial privilege, however, because Congress lacks the power to prohibit the private transportation of matter that it chooses to exclude from the mails.[78]

In Greenburgh, the Court held the First Amendment does not guarantee the people a “right to deposit, without payment of postage, their notices, circulars, and flyers in letterboxes which have been accepted as authorized depositories of mail by the Postal Service.”[79] The Court affirmed that the First Amendment does not guarantee access to property used to disseminate mass media communications even when the communications service is owned or controlled by the government, because “‘the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”[80] It further concluded that designating a letterbox as an “authorized depository” for the mail does not transform it into a “‘public forum’ of some limited nature to which the First Amendment guarantees access to all comers,” because mail service is not a traditional First Amendment forum such as the public streets or a park.[81] The Court concluded that “it is a giant leap from the traditional ‘soapbox’ to the letter-box designated as an authorized depository of the United States mails,” and that the First Amendment did not require it to make that leap.[82]

Congress prohibited the deposit of mailable material in letter boxes without the payment of postage because the practice was depriving the postal service of considerable revenue.[83] The Court thought it particularly ironic that the challenged regulation’s role in supporting the overall success of the postal service was a causal factor in the First Amendment challenge:

For it is because of the very fact that virtually every householder wishes to have a mailing address and a receptacle in which mail sent to that address will be deposited by the Postal Service that the letterbox or other mail receptacle is attractive to those who wish to convey messages within a locality but do not wish to purchase the stamp or pay such other fee as would permit them to be transmitted by the Postal Service.

It is implicit in the findings of Congress and the decision of the Court that granting a constitutional right to access mass media facilities would harm their ability to publish and disseminate mass media communications.

This reasoning is equally applicable to the open Internet rules. The FCC had previously found that common carriage regulation inhibits new investments in Internet infrastructure and that the Internet’s overall success is premised on the ability of ISPs to exercise control over their networks.[85] Greenburgh indicates that the FCC’s new decision to prohibit ISPs from managing their networks for “business reasons” is equivalent to killing the golden goose. ISPs have no less interest in preserving the value of their Internet investments than the postal service has in preserving the service it controls; and there is no reason to believe that the government-mandated right of free access to ISP networks granted to content providers by the FCC is any less harmful to the Internet than permitting the deposit of letters without postage was harmful to the postal service. Whether it is a hen (the postal service) or a goose (the Internet), a farmer is deprived of the opportunity to gather eggs when the golden fowl is smothered with good intentions.

The Court has also recognized that a constitutional right to access mass media communications would necessarily entangle the government and the press. If content providers and consumers had a First Amendment right to access the Internet, it could result in a myriad of new constitutional claims with potentially adverse consequences for other government objectives. Courts might have to “face the difficult, and potentially restrictive, practical task of deciding which, among any number of private parties involved in providing a program (for example, networks, station owners, program editors, and program producers), is the ‘speaker’ whose rights may not be abridged, and who is the speech-restricting ‘censor.’”[86] The interconnection dispute between Netflix and certain ISPs provides a timely example of the challenges involved when making such determinations with respect to the Internet, a network of networks that disseminates content on a global scale. In a petition filed at the FCC, Netflix asserted that, when it refused to pay Comcast for the provision of additional interconnection capacity and Comcast refused to provide it for free, their mutual customers were effectively denied access to Netflix’s streaming video service.[87] Assuming their mutual customers had a First Amendment right to access Netflix’s streaming video service, who abridged it, Netflix or Comcast? The FCC, citing “competing narratives,” has not determined who should bear responsibility for degrading Netflix’s streaming speeds.[88] When an expert agency struggles to decide such cases, it is difficult to see how the courts could be expected to resolve them as a matter of constitutional law.

In short, there is no constitutional right to access facilities operated by the press because such a right would be antithetical to the purpose served by the Press Clause. Justice Stewart aptly illustrated the dangers of attempting to second-guess the separation of government and press embedded in the First Amendment:

The First Amendment prohibits the Government from imposing controls upon the press. Private broadcasters are surely part of the press. Yet here the Court of Appeals held, and the dissenters today agree, that the First Amendment requires the Government to impose controls upon private broadcasters—in order to preserve First Amendment ‘values.’ The appellate court accomplished this strange convolution by the simple device of holding that private broadcasters are Government. This is a step along a path that could eventually lead to the proposition that private newspapers ‘are’ Government. Freedom of the press would then be gone. In its place we would have such governmental controls upon the press as a majority of this Court at any particular moment might consider First Amendment ‘values’ to require. It is a frightening specter.[89]

This specter is no less frightening with respect to the Internet. The fundamental value of the First Amendment is avoiding the specter of government control over mass media communications. That value cannot be reconciled with a government-protected right of the people to access the Internet.

The FCC’s rationale enables government censorship of the Internet

In the absence of a First Amendment right, there is no standing to bring a constitutional challenge against a government restriction on speech. It is an “‘established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action.’”[90] “The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party.”[91] To invoke the jurisdiction of a federal court, a complainant must have more than a “generalized grievance” and “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”[92] The essential standing question “is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief.”[93] End users who object to government censorship of ISP transmissions cannot meet the direct injury requirement in their own right, because they have no constitutional right to speak using ISP networks,[94] and they cannot object on behalf of ISPs under the overbreadth exception because the FCC ruled that ISPs do not have a constitutional right to control their transmissions either.

In First Amendment cases involving allegations of overbreadth, the Court has permitted complainants to assert the rights of another party in First Amendment cases due to the possibility that the party who is actually engaged in protected activity will refrain from that activity rather than risk punishment for his conduct in challenging the restriction.[95] This exception “has been employed by the Court sparingly and only as a last resort,” because declaring a statute overbroad on its face totally forbids its application “until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.”[96] To avoid unduly limiting the government’s ability to proscribe conduct that incidentally involves speech, the Court has held that this already limited exception to the standing requirement attenuates further as the restricted behavior moves from “pure speech” toward conduct that is otherwise constitutionally unprotected.[97] According to the FCC, ISP transmissions have moved so far toward “pure conduct” that they warrant no constitutional protection at all, which means there is no constitutional right for end users to assert on behalf of ISPs under the overbreadth exception even if it would otherwise apply.

If the total lack of standing to challenge government censorship of the Internet seems absurd, the absurdity is not in the standing requirement: It is in the FCC’s notion that the operators of conduits used for the transmission of mass media communications have no First Amendment right to exercise editorial discretion like any other member of the press. A reviewing court could, in theory, attempt to avoid the absurd standing result while upholding the FCC’s ruling by overturning or ignoring Supreme Court precedent holding there is no constitutional right to access mass media communications. But, given the strong preference of lower courts for following Supreme Court precedent when deciding constitutional issues, it is unlikely that a reviewing court would choose that route.

The open Internet rules cannot withstand First Amendment scrutiny

The application of the First Amendment to ISPs does not automatically invalidate the open Internet rules. The elimination of ISPs’ right to editorial discretion will be upheld if the government demonstrates that the rules are justified under the applicable level of judicial scrutiny. A government restriction on protected speech that is based on content or disfavors certain speakers is subject to “strict scrutiny” and will be tolerated only upon a showing that the restriction is narrowly tailored to promote a compelling government interest and no less restrictive alternative would serve the government’s purpose.[98] A restriction that is speaker- and content-neutral, however, is is permissible if it advances important governmental interests unrelated to the suppression of free speech or the freedom of the press and does not burden substantially more speech than necessary to further those interests (“intermediate scrutiny”).[99]

As discussed in more detail below, the FCC has not justified the open Internet rules under either standard.

The open Internet rules abridge core First Amendment rights

In the mid-to-late 20th Century, the Supreme Court indicated that the applicable level of First Amendment scrutiny depends in part on the nature of the mass media in question. The Court has traditionally applied the strictest scrutiny to restrictions on the print media (e.g., newspapers) and lesser levels of scrutiny to audiovisual media (e.g., broadcast and cable television). Some believe the only way to reconcile this differential treatment is by examining differences among the media at issue.[100] According to this school of thought, the applicable level of First Amendment scrutiny is determined by evaluating whether the mass media technology at issue more closely resembles broadcast television or print.[101]

More recently, the Court has indicated that the nature of a particular mass media technology should be irrelevant to First Amendment analysis.[102] Though the Court has not directly overruled earlier opinions justifying differential treatment of different types of mass media, its reasoning in recent cases is inconsistent with the late 20th Century doctrine of applying lower levels of scrutiny to video media. It has stated that “[r]apid changes in technology—and the creative dynamic inherent in the concept of  free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers,”[103] and “whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.”[104] In 2010, the Court acknowledged that both newspapers and television networks are “important means of mass communication in modern times,” and that modern speakers and media are entitled to the same First Amendment protection as “those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.”[105] That same year, the Court held that the government cannot create new categories of unprotected speech the government considers “too harmful to be tolerated.”[106]

Insofar as the open Internet rules are concerned, however, a lower court need not pass on the validity of late 20th Century precedent applying lower levels of scrutiny to the exercise of editorial discretion over video programming. Even if that precedent remains valid, strict scrutiny would apply to ISPs because broadband Internet access services implicate the same core First Amendment rights as traditional print media. The Internet is a means of publishing and disseminating newspapers and other texts that contain the same type of purely political speech that has always been accorded strict First Amendment scrutiny. The Supreme Court recognized this reality nearly 20 years ago, when it described the Internet as a “dynamic, multifaceted category of communication [that] includes . . . traditional print and news services.”[107]

The FCC misses the point when it claims that ISP services “more closely resemble the ‘conduit for news, comment, and advertising’ from which the Court distinguishes newspaper publishing.”[108] There is “no American tradition” of reviewing government restrictions on the dissemination of newspapers under intermediate scrutiny.[109] The act of disseminating the news in print has been subject to strict scrutiny since at least 1877, when the Court ruled in Jackson that the transportation of newspapers through the mail is as essential to freedom of the press as printing them.[110] In contrast to broadcast and cable television, the Internet is capable of delivering newspaper print directly to the masses like mail carriage. Indeed, the Internet is rapidly displacing the traditional role of the Postal Service in delivering printed news. According to the Newspaper Association of America, 137 million U.S. adults read a hardcopy newspaper in a typical week while newspapers printed and disseminated on the Internet reached more than 145 million unique visitors in January, 2014 alone.[111]

An an alternative means of disseminating newspapers, the Internet functions as a modern equivalent to the unsealed mail at issue in Jackson, and as such, the Internet is entitled to the same level of strict scrutiny that has always applied to the publication and dissemination of print media.

The distinction between conduct and speech does not apply

The FCC nevertheless contends that the open Internet rules govern conduct subject to intermediate scrutiny because “they are triggered by a broadband provider offering broadband Internet access services.”[112] But, the fact that an ISP loses its right to exercise any degree of editorial control over its transmission of information by the act of choosing to provide a means to disseminate mass communications is the very reason the open Internet rules are subject to strict scrutiny.

The line between strict and intermediate scrutiny is premised on the distinction between government restrictions aimed at suppressing speech (to which strict scrutiny applies) and restrictions aimed primarily at conduct that “incidentally” burdens speech (to which intermediate scrutiny applies).[113] The Court applies intermediate scrutiny to conduct that combines speech and nonspeech elements because “a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”[114] As Justice Harlan noted in his concurring opinion in United States v. O’Brien, however, this rationale does not foreclose the application of strict scrutiny “in those rare instances when an ‘incidental’ restriction on expression, imposed by a regulation which furthers an ‘important or substantial’ governmental interest and satisfies the Court’s other criteria, in practice has the effect of entirely preventing a ‘speaker’  from reaching a significant audience with whom he could not otherwise lawfully communicate.”[115]

This is one of those rare instances.[116] If owning and operating a printing press or its modern equivalent were, in and of itself, considered mere conduct that is undeserving of strict scrutiny, the Press Clause would lose all meaning. The Press Clause could not serve its intended purpose — to ensure the government cannot control speech by controlling the physical means of disseminating mass communications — if less-than-strict scrutiny were automatically applied to the act of owning and operating a mass communications system.[117] Otherwise, government practices the Founders plainly intended to abolish (e.g., press licensing laws) would be accorded less demanding scrutiny than the dissemination of pornographic material.[118]

The open Internet rules are content- and speaker-based on their face

Strict scrutiny would apply even if the open Internet rules could be considered an “incidental” restriction on speech because they are not content- or speaker-neutral. The open Internet rules are speaker- and content-based restrictions on speech on their face, because they eliminate any opportunity for an ISP to exercise its right of editorial discretion while permitting the exclusion of speech for purely technical reasons. The rules prohibit an ISP from blocking, impairing, or unreasonably interfering with or disadvantaging any lawful content unless the ISP can demonstrate that it has a “primarily technical network management justification” for the exclusion (an exception the FCC dubs “reasonable network management”).[119] Permitting ISPs to discriminate solely for content-neutral reasons reveals the real government interest in the open Internet rules is to prohibit the exercise of editorial discretion by ISPs.

The reasonable network management exception reflects the FCC’s finding that ISPs must exercise some control over their networks for them to function properly. This FCC finding expressly included the need for ISPs to alleviate network congestion — a euphemism for non-content-based blocking, impairment, or disadvantage of speech.[120] The FCC’s recognition that congestion-related blocking, impairment, and disadvantage of traffic can occur as a result of its ban on editorial discretion indicates that blocking, impairment, and disadvantage are not harmful, per se; these conditions are an inherent and expected consequence of the Internet’s decentralized design. Conversely, the reasonable network management exception indicates that the FCC considers the speech of ISPs to be harmful, per se, because their exercise of editorial discretion can never be considered reasonable: “For a practice to even be considered under this exception, a broadband Internet access service provider must first show that the practice is primarily motivated by a technical network management justification rather than other business [or content-related] justifications.”[121]

The FCC’s absolute ban on paid prioritization further illustrates the content-based nature of the rules. According to the FCC, paid prioritization can never be considered reasonable network management because paid prioritization “does not primarily have a technical network management purpose.”[122] The per se ban on paid prioritization does more than put an exclamation point on the government’s interest in muzzling ISPs. It also restricts the speech of end users who wish to avoid Internet congestion in an effort to ensure their viewpoint is heard. The FCC’s justification for restricting the speech of end users in this manner — the alleged “chilling effects” that paid prioritization could have on end users who might be unwilling or unable to pay for prioritization[123] — is patently inconsistent with First Amendment precedent. The Supreme Court has rejected the notion that the government has an interest in equalizing the relative ability of individuals or groups to speak.[124] “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”[125]

It is constitutionally irrelevant that the content-related restrictions in the open Internet rules also implicate business concerns.[126] The Court has long held that the commercial nature of the press does not deprive it of First Amendment protection, because there is no constitutionally permissible way for the government to separate the business interests of the press from its editorial function.[127] The existence of “‘commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment,’”[128] in part because even early printers were capitalists who were regarded as innovators.[129] The combination of the profit motive “with other motives that were self-serving and altruistic, and even evangelistic, at times,” played a role in the “rapid expansion of early printing industries.”[130] The editorial and business interests of the press have always been inextricably intertwined,[131] and the Press Clause has always forbidden government attempts to unravel them.[132]

The purpose of the open Internet rules is content-based

Even if the rules could be considered neutral on their face, strict scrutiny applies because the virtuous cycle theory and the gatekeeper ideology on which it is premised are inherently related to the suppression of free expression. When determining whether a regulation is content-based, “[t]he government’s purpose is the controlling consideration.”[133] Speech that does not burden or benefit speech of particular content on its face is nevertheless content-based if “the Government’s asserted interest is related to the suppression of free expression.”[134] The government interests cited by the FCC in the Second Internet Order are all related to the suppression of speech. The purported benefits of the “virtuous cycle” theory — encouraging broadband deployment and “promoting the continued development of the Internet and other interactive computer services and other interactive media”[135] —  are all premised on the alleged innovation that occurs when ISPs are prohibited from exercising editorial discretion.[136] In this context, however, “innovation” is doublespeak for “speech.”

The virtuous cycle theory posits that “innovation” at the “edges” of the Internet “enhances consumer demand, leading to expanded investments in broadband infrastructure that, in turn, spark new innovations at the edge.”[137] Even if promoting broadband band deployment and innovation are important government interests in the abstract, the FCC’s factual findings indicate that its real interest is promoting non-ISP speech. According to the FCC’s Sixteenth Report on video competition, online video distribution accounted for 63.87 percent of downstream Internet traffic on North American fixed access networks in March 2014, with Netflix alone accounting for over 34 percent of peak Internet traffic.[138] This traffic is not “innovation” — it is the same type of mass media content that is distributed by broadcasters and cable operators and competes with television and cable content for viewers.[139] Given the FCC’s finding that most Internet traffic is video programming similar to that which has long been distributed by broadcast and cable systems, what the “virtuous cycle” theory actually posits is that non-ISP speech “enhances consumer demand, leading to expanded investments in broadband infrastructure that, in turn spark new [speech] at the edge.”[140]

The abundance of speech enabled by mass communications has always been a catalyst for innovation. In her two-volume masterwork, The Printing Press as an Agent of Change, Elizabeth Einstein details how the invention of the printing press “revolutionized all forms of learning”[141] by fundamentally “altering methods of data collection, storage and retrieval systems and communications networks used by learned communities throughout Europe.”[142] Her treatise makes a persuasive case that the advent of printing “inaugurated a new cultural era in the history of Western man”[143] and, as Francis Bacon described it in the 17th Century, ultimately “changed the appearance and state of the whole world”[144] by enabling a “marked increase in the output of books and [a] drastic reduction in the number of man-hours required to turn them out.”[145] This ability to disseminate more information with less labor meant that “a given purchaser could buy more books at lower cost,”[146] which in turn spurred greater demand for books.[147]

It is no coincidence that Elizabeth Einstein’s analysis of early printing’s impact on Europe is remarkably similar to the FCC’s virtuous cycle theory of the Internet. The primary difference between the Internet and the printing press is that the Internet can disseminate even more information even more quickly at an even lower cost. The benefits described by the virtuous cycle theory are merely the history of the printing revolution repeating itself.

The Framers were doubtless aware of the myriad benefits offered by mass communications when they drafted the Press Clause. Their primary concern, however, was the impact that mass media communications have on the mechanism of democracy.[148] The right to free expression embodied in the Speech and Press Clauses is a “precondition to enlightened self-government and a necessary means to protect it,”[149] and it is for these reasons that free expression must prevail against government efforts to censor particular content or particular speakers,[150] including laws that censor ISPs. Whatever merit it might otherwise have, the virtuous cycle theory cannot be used as a government justification for trumping the First Amendment because the virtuous cycle predates it.

It should therefore be no surprise that the FCC’s First Amendment rationale is directly contradictory to the Supreme Court’s holding in Miami Herald Pub. Co. v. Tornillo.[151] In the Second Internet Order, the FCC states,“The key insight of the virtuous cycle is that broadband providers have both the incentive and the ability to act as gatekeepers standing between edge providers and consumers.”[152] This statement is an admission that the “threat” to broadband deployment and Internet innovation the open Internet rules are intended to address is, quite literally, the First Amendment right of ISPs to exercise editorial discretion while “standing between” other private citizens. This “insight” is neither new nor content-neutral. It assumes that (1) the operators of mass media communications systems are a threat to expression, rather than an enabler of it; (2) the government has authority to establish an enforceable right of access to private mass media communications systems; and (3) the government should exercise that authority without reference to the scarcity of the medium (e.g., the availability of alternatives) or the right of ISPs to exercise editorial discretion. These assumptions reveal the gatekeeper ideology as nothing more than a repackaged, and far more expansive, version of the media access arguments the Supreme Court rejected in Tornillo, a case in which the Supreme Court implicitly recognized that newspapers act as gatekeepers between their subscribers and political candidates.

Tornillo held that a statute requiring newspapers to give political candidates a right to equal space to respond to criticism of their records violated the Press Clause. For sake of argument, the Court was willing to concede facts similar to those cited by the FCC in support its gatekeeper theory. The Court detailed the contentions of media access proponents that (1) “economic factors” had made “entry into the marketplace of ideas served by the print media almost impossible,” (2) competing newspapers had been “eliminated in most of our large cities,” and (3) most consumers subscribed to or read only their locally available newspapers.[153] It nevertheless concluded that, “[h]owever much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism” for enforcement, and “if it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment,” including its prohibition on government efforts to abridge the freedom of the press.[154]

The FCC’s contention that the open Internet rules are content neutral because ISPs remain free to provide their own online content[155] begs the question:[156]

The Florida statute [restricting newspapers’ editorial discretion] operates as a command in the same sense as a statue or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as appellee contends, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available.[157]

The FCC attempted to avoid Tornillo’s rationale by claiming that ISPs do not face the same economic limitations as newspapers, because providing an end user with “access to one edge provider does not displace another.”[158] This attempt to distinguish Tornillo is unpersuasive, however, because it is inconsistent with the FCC’s most recent factual findings in other proceedings that were aimed specifically at the (1) technological capabilities of ISP networks, (2) consumer demand for access to Internet content, and the (3) economics of deploying more capable Internet networks.

One month before it issued the Second Internet Order, the FCC issued its latest Broadband Progress Report, which found that most ISP networks are currently incapable of providing most consumers with “access to the extensive and ever-expanding [voice, data, graphics, and video] offerings available today or on the near horizon.”[159] According to the Broadband Progress Report, access to one edge provider does displace another provider if an end user does not have “access to actual download speeds of at least 25 Mbps and actual upload speeds of at least 3 Mbps (25 Mbps/3 Mbps).”[160] The FCC based its finding that the “broadband” Internet requires at least 25 Mbps/3 Mbps on the actual household usage of today’s consumers.[161] It found that, “Americans increasing rely on broadband to perform multiple functions, and consumers within a household routinely use multiple applications simultaneously.”[162] It further found that ISP offerings that do not meet the 25 Mbps/3 Mbps benchmark cannot adequately support the simultaneous use of multiple content services that consumers demand.[163] These factual findings demonstrate that, when one member of a household is using a sub-25 Mbps Internet connection to access the content of a particular provider, other members of the same household may be precluded from simultaneously accessing content offered by other providers.[164] The fact that requiring an ISP to provide access to a particular edge provider may indeed displace content provided by other edge providers, including content provided by the ISP itself, directly implicates the same editorial concerns that drove the Court’s opinion in Tornillo.

Separate FCC findings indicate that these concerns are exacerbated in rural America. In its Connect America proceeding, the FCC found that it is uneconomical to deploy broadband Internet infrastructure in rural areas without financial support from the Universal Service Fund,[165] especially infrastructure that is capable of supporting simultaneous access to multiple content streams.[166] Two months before the FCC issued the Second Internet Order, it found that it would be too costly for the government to support the deployment of rural Internet infrastructure at the 25 Mbps/3 Mbps level that is necessary for typical American households to access multiple Internet content streams simultaneously. This finding, combined with the FCC’s findings in the Broadband Progress Report, indicates it is indeed “economic reality” that an ISP cannot “proceed to infinite expansion of its [network] space to accommodate the [content] that a government agency determines or a statute commands [Internet end users] should have available.”[167]

There is similarly no merit to the FCC’s claim that the open Internet rules are content neutral because they “do not burden any identifiable speech.”[168] It is not enough to demonstrate that a restriction is unrelated to the suppression of a particular type of speech under the Press Clause. The Court’s opinion in Tornillo indicates the results would have been the same even if the statute at issue had been content-neutral:

Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.[169]

The open Internet rules discriminate against disfavored speakers without justification

There is also no merit to the FCC’s claim that its open Internet “rules are structured to operate in such a way that no speaker’s message is either favored or disfavored.”[170] The record demonstrates that the rules impermissibly discriminate between ISPs and other Internet intermediaries that act as gatekeepers between consumers on the one hand, and device, application, and content providers on the other.[171] Non-ISP gatekeepers, a category that includes the providers of mobile operating systems and Internet search engines, have substantially the same incentives and ability as ISPs to exercise gatekeeper control over end users because:

  • End users rely on these non-ISP gatekeepers to reach other end users on the Internet;
  • The end users of non-ISP gatekeeper services bear switching costs that are substantially similar to those borne by ISP subscribers;
  • The markets for non-ISP gatekeeper services are typically more concentrated (i.e., less competitive) than markets for broadband internet access; and
  • Non-ISP gatekeepers are actually using their market position to block, impair, and interfere with or disadvantage lawful devices, applications, and content.[172]

Even though non-ISP gatekeepers are indistinguishable from ISPs with respect to the government interests the FCC identified in the Second Internet Order, it exempted all non-ISP gatekeepers from the restrictions in the open Internet rules.

The FCC did not dispute the evidence cited above or attempt to explain why it chose to exclude non-ISP gatekeepers from the restrictions in its open Internet rules.[173] The FCC’s failure to offer a rationale for the discriminatory application of its open Internet restrictions is alone sufficient to support the application of strict scrutiny. Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles,[174] because government discrimination “among different speakers . . . may be a means to control content,”[175] and “[u]nderinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”[176] In the absence of any explanation for such disparate treatment, an intent to control content may be presumed.[177]

Precedent applying intermediate scrutiny to video programming is inapplicable

The FCC reliance on the Court’s holding in Turner I to argue that intermediate scrutiny applies is misplaced. In stark contrast to the open Internet rules, the mandatory access rights at issue in Turner I — “must carry” rules that require cable operators to carry the signals of a specified number of local broadcast television stations — were limited in scope.[178] Turner I applied intermediate scrutiny because “the number of channels a cable operator must set aside depends only on the operator’s channel capacity,” which means there is no danger that a cable operator could avoid or mitigate its obligations by altering the programming it offers subscribers.[179] The Turner I Court expressly contrasted this conclusion with Tornillo, in which the Court expressed concern that a newspaper could avoid its access obligations by refraining from speech critical of political candidates.[180]

The total ban on the editorial discretion of ISPs in the open Internet rules creates content-based incentives for ISPs that are similar to those in Tornillo,[181] not Turner I. The FCC admitted that its rules give ISPs an incentive to shift programming from the open Internet to the excluded category the FCC dubs “non-broadband Internet access services.”[182] It acknowledged that these services “could be used to evade the open Internet rules,”[183] and emphasized that it would “act decisively in the event that a broadband provider attempts to evade open Internet protections (e.g., by claiming that a service that is the equivalent of Internet access is a non-BIAS data service not subject to the rules we adopt today).”[184] The FCC’s finding that ISPs could attempt to avoid their access obligations by altering their approach to programming is thus flatly inconsistent with the Court’s justification for intermediate scrutiny in Turner I. Because the open Internet rules create content-based incentives similar to those in Tornillo, strict scrutiny applies.

The open Internet rules cannot withstand strict scrutiny

If a court applies strict scrutiny to the open Internet rules, the reasoning in Tornillo indicates the reviewing court would be bound to hold that the FCC’s rules are unconstitutional. “Experience has shown that unrestrained power cannot be trusted to serve the public weal even though it be in governmental hands. The fate of the First Amendment should not be so jeopardized.”[185]

The open Internet rules cannot withstand intermediate scrutiny

The open Internet rules would be unconstitutional even if intermediate scrutiny were applied. According to the FCC, its rules are justified by the interests of the government in promoting (1) additional broadband deployment, (2) Internet innovation, and (3) assuring a diversity of non-ISP speech.[186] Even assuming these government interests are important, the FCC failed to demonstrate that imposing a total ban on the editorial discretion of ISPs does do not burden substantially more speech than necessary to further them.

The FCC cannot ban ISP speech to promote non-ISP speech

The government’s interest in assuring diversity of speech is easily dismissed. Even under less stringent, intermediate scrutiny, the total ban in the open Internet rules cannot meet the narrow tailoring requirement because it completely ignores the interest of ISPs in exercising editorial discretion. With nary a hint of irony, the FCC claims that its total ban on ISPs’ editorial discretion has only a “minimal” effect on speech.[187] It even goes so far as to suggest that the ability of ISPs to exercise editorial discretion is, in and of itself, inimical to the “values central to the First Amendment.”[188] But, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”[189] Though the Court has permitted the government to impose limited restrictions on the editorial discretion of cable television operators, it has refused to “ignore the expressive interests of cable operators altogether.”[190] Whatever interest the government has in assuring a diversity of speech generally cannot be used to justify a total ban on the speech of a particular category of speaker — especially when that category is part of the press.

A contrary view would invite the government to pick and choose among speakers based on its own cost-benefit analysis: In this case, that “edge” speech is more valuable than ISP speech. The Supreme Court has repeatedly and “emphatically rejected” the “‘startling and dangerous’ proposition” that the First Amendment permits the government to balance the social costs of suppressing the speech of some with the purported benefits it might have for others:[191]

The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.[192]

The FCC’s notion that the ability of ISPs to exercise editorial discretion while providing a means of mass communications is a “special characteristic” that justifies government restraint is anathema to the purpose of the Press Clause, which is to protect the editorial discretion of the press from government interference, not to protect private individuals from the press. The FCC may not revise the judgment of the American people — embodied in the First Amendment — that the benefits of the First Amendment’s restrictions on the government outweigh its costs.[193]

A total ban on ISP speech burdens substantially more speech than necessary

The FCC also failed to demonstrate that its total ban on ISP speech is narrowly tailored to the government’s interests in promoting broadband deployment and Internet innovation.[194] The FCC’s reliance on the court’s acceptance of the virtual cycle theory in Verizon is misplaced.[195] First, the previous open Internet rules reviewed by the Verizon court were substantially less burdensome than the common carrier regulations adopted in the Second Internet Order. The previous rules did not ban paid prioritization, apply strict non-discrimination obligations to mobile providers, or include a vague prohibition on other conduct. Second, the Verizon court reviewed the FCC’s previous open Internet rules using the statutory standard of review in the Administrative Procedure Act, which is “highly deferential” to congressionally delegated authority,[196] not the heightened degree of scrutiny required by the First Amendment. “[I]f intermediate scrutiny is to have any bite, we can’t just trot out all of the reasons the government advances in support of the regulation and salute.”[197] The government must prove that “the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”[198] The FCC has not met that burden here.

Even if the virtuous cycle theory makes sense in the abstract, the relationship between the theory and the rules the FCC actually adopted is too tenuous to justify a total ban on ISPs’ right to exercise editorial discretion. The core of the virtuous cycle theory — that activity at the “edge” of a communications network tends to increase demand for the network’s services — merely describes a positive form of the economic principle commonly known as “network effects.” “For example, ‘[a]n individual consumer’s demand to use (and hence her benefit from) the telephone network … increases with the number of other users on the network whom she can call or from whom she can receive calls.’”[199] But acknowledging this principle’s existence is not enough to overcome the First Amendment rights of ISPs.[200] To justify the complete abnegation of ISPs’ First Amendment rights, the FCC must prove that the open Internet rules will in fact promote broadband deployment in a direct and material way.

The required showing cannot rest on theory alone, because, like all two-sided markets, the potential benefits of positive network effects on the Internet can go either way.[201] ISPs have their own incentives to promote the positive network effects described by the virtuous cycle theory, and these incentives to harness the theory in order to increase demand for their services tend to offset their incentives to disfavor content. The only question is to what extent — a question the FCC refused to answer. The FCC did not even attempt to quantify the extent to which ISPs’ incentives to increase demand for their services offsets their incentives to disfavor content. It instead relied on the possibility that ISPs “could act in ways that would ultimately inhibit the speed and extent of future broadband deployment”[202] without considering whether, or to what extent, this possibility would be offset by the benefits ISPs would derive from deploying broadband networks to meet increased demand.[203] In the absence of such evidence, it is impossible to know whether the open Internet rules will promote any additional broadband deployment or innovation at all, let alone result in a direct and material increase.

If the FCC had fully analyzed ISPs’ competing incentives, it would have been more obvious that the imposition of strict common carrier regulation on ISPs tends to shift the potential benefits of additional broadband deployment from ISPs to so-called edge companies, which tends to inhibit deployment. It is well known that access regulations deter investment by imposing the highest risk on network operators while shifting the highest returns to access seekers.[204] In the context of network unbundling, Congress and the courts have both recognized that government-mandated access “is not an unqualified good”[205] and permitted its use only when “necessary” to remedy a market “impairment,” because it creates disincentives to innovation and investment in networks.[206] To the extent the open Internet rules enable content providers to extract more profit from the potentially risky network investments of ISPs, the rules will in fact deter broadband deployment and innovation.

The open Internet rules are inherently unjust and unreasonable

The notion that regulations aimed at constraining ISP revenue will nevertheless prompt ISPs to invest more capital in their networks is also contradicted by precedent indicating that the open Internet rules are inherently unjust and unreasonable under both the common law and the Communications Act. The prohibitions in the open Internet rules extend well beyond what has previously been required by common carrier law. There is no traditional common carrier counterpart to the FCC’s new “bright line” rule prohibiting ISPs from accepting payment or other consideration for the prioritization of particular types of content, applications, services or devices.[207] Indeed, the FCC’s claim that paid prioritization practices invariably “harm consumers, competition, and innovation, as well as create disincentives to promote broadband deployment” is directly contradicted by over a century of jurisprudence. In Western Union, a 1901 case addressing alleged discrimination by a telegraph operator, the Supreme Court noted that the non-discrimination obligation applicable to carriers at common law permitted them to charge one end user a higher rate than another when differences affecting the expense or difficulty in performing the services fairly justify the difference in rates.[208] In stark contrast to the FCC’s conclusion in the Second Internet Order, the Court declared that “no one can doubt the inherent justice” of permitting a common carrier to offer different services and to charge different rates for them.[209] At common law, which draws its weight and authority from customs that have proven successful since time out of mind,[210] “[t]here is no cast iron line of uniformity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same lines.”[211]

Congress has not imposed cast iron lines of uniformity on common carriers either. The Communications Act does not require a common carrier to provide “[a]bsolute equality of access” to its facilities.[212] It prohibits only “unjust or unreasonable discrimination” by common carriers,[213] requires them to provide service only when the request is “reasonable,”[214] and requires that their charges and practices be “just and reasonable.”[215] The Communications Act expressly provides that “communications by wire or radio subject to this chapter may be classified into day, night, repeated, unrepeated, letter, commercial, press, Government, and such other classes as the Commission may decide to be just and reasonable, and different charges may be made for the different classes of communications.”[216] The public interest standard applicable to common carriers is “essentially one of reasonableness,” not absolutes.[217]

It is impossible to square prior precedent interpreting this “reasonableness” standard with the Second Internet Order’s conclusion that it is inherently unreasonable for an ISP to manage Internet traffic for “business” reasons.[218] The FCC and the courts have long authorized common carriers to block, prioritize, and discriminate against particular traffic, end users, or other carriers for purely business reasons. In Rogers Radio v. FCC, the D.C. Circuit Court of Appeals held that the refusal of a wireline carrier (IBT) to provide additional Inward-bound Wide Area Telephone Service (INWATS) lines to a requesting wireless carrier (Rogers) on a non-compensatory basis did not violate the reasonableness requirement in Section 201. The court “could divine no basis” for concluding that it would be “reasonable” to require IBT to either (1) provide additional lines to Rogers at a loss, or (2) raise its own subscriber rates.

First, it cannot reasonably be disputed that IBT could provide INWATS interconnection to Rogers’ machines only at a loss. If IBT were to incur such a loss, it is also undisputed that it would be necessary to offset that loss by increased charges to other IBT customers. It simply cannot reasonably be said that the ALJ erred in finding that IBT’s refusal to require, in effect, its other customers to subsidize Rogers was reasonable and in the public interest.[219]

What the D.C. Circuit considered irrefutably unreasonable in Rogers is exactly what the open Internet rules now require ISP to do. For example, if Netflix decides to provide its video programming in a higher definition format than a particular ISP’s network can accommodate, and the ISP upgrades its facilities in order to transmit that traffic, the open Internet rules require the ISP to recover the cost of upgrading its facilities from its own subscribers only. The ISP would thus be required to “increase its rates for all of its subscribers to cover the additional costs imposed by Netflix – including its subscribers who don’t use the Netflix service.”[220] As a result, ISP subscribers who do not use Netflix as their video programming service provider would unwittingly be paying for the delivery of Netflix content to their neighbors while giving Netflix a significant price advantage over its competitors.[221] This is a very different version of “just and reasonable” than that recognized by the Supreme Court in Western Union and the D.C. Circuit in Rogers.

This is particularly true with respect to the delivery of video content, which has traditionally been exempt from comprehensive common carriage requirements on First Amendment grounds. The Communications Act expressly exempts broadcasters from regulation as common carriers,[222] and requires the FCC to regulate cable television and other multichannel video programming distribution services under Title VI, not the common carrier provisions in Title II.[223] Title VI has never imposed an absolute prohibition on exclusive agreements between MVPDs and content providers, and in 2012, the FCC allowed the temporary per se prohibition on exclusive contracts involving cable operators to expire.[224] The FCC found that, because the cable industry is now less dominant than when the exclusivity prohibition was adopted, “a preemptive ban on exclusive contracts sweeps too broadly.”[225] It is passing strange that the FCC reached the opposite conclusion in the Second Internet Order, especially when it had proposed to define online video distributors as MVPDs only a few months previously.[226]

The FCC’s conclusion that paid prioritization is inherently harmful is also inconsistent with the government’s traditional approach to mail carriage, which routinely prioritizes and charges different rates for different types of content.

Congress, which legislated postage rates until 1970, encouraged the exchange of newspapers and magazines by allowing them to travel through the mail at extremely low rates of postage – in some cases for free. Congress subsidized postage on periodicals by over-charging for letter postage and, when necessary, digging deep into the U.S. Treasury . . . . for nearly a hundred years.[227]

The Supreme Court has recognized that “[t]he second-class [mail] privilege is a form of subsidy,” and that, “[f]rom the beginning Congress has allowed special rates to certain classes of publications.”[228] Rather than declare such practices inherently harmful, however, the Supreme Court has upheld the government’s right to engage in paid prioritization of the mail for the purpose of subsidizing particular forms of speech.[229]

The Supreme Court has changed course since Jackson with respect to the right of the Postal Service to engaged in viewpoint-based discrimination, but this reversal in no way diminishes the First Amendment rights of private carriers.[230] The Court changed course because the combination of the government-enforced postal monopoly and government-subsidized delivery of newspapers had resulted in an artificial scarcity of private alternatives for their delivery. Though the government had not expressly run afoul of Jackson’s prohibition on government attempts to foreclose the private transportation of non-mailable materials, the subsidized delivery of newspapers through the monopoly postal service had, as a practical matter, rendered it the only means of delivering them.[231] “‘The United States may give up the post-office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues . . . .’”[232]

In the abstract, paying less for the delivery of newspapers probably seemed like a good deal. In reality, however, Heinlein’s admonition that “there ain’t no such thing as a free lunch” applied to the mail just as it applies to the Internet and the FCC’s open Internet rules today. While Congress ran the post office with the intent to increase federal revenue (from its founding until the mid-19th Century) it was usually in the black, but once Congress shifted its priority toward subsidizing periodicals, the post office became a perennial drain on the Treasury.[233] After “the emergence of this activist welfare orientation,” the post office recorded a profit only eight times in the 130 years from 1850 to 1980.[234] Though they may not have realized it, the people ultimately paid the price for this government policy through higher postal rates for first class mail and taxes.

There is no factual finding of scarcity justifying a total ban on editorial discretion

The Red Lion and Turner cases — the leading cases in which the Supreme Court has upheld restrictions on the freedom of the press under a less-than-strict standard of scrutiny — are readily distinguishable.[235] Neither case involved a presumptively invalid, total ban on the editorial discretion of the press, and the limited government restrictions in these cases were justified by detailed factual findings of scarcity.

In Red Lion, the Court relied on the intrinsic scarcity of available broadcast frequencies to justify the constitutionality of a regulation requiring broadcasters to give “fair coverage” to public debates.[236] The Court has since affirmed that the “justification for [its] distinct approach to broadcast regulation rests upon the unique physical limitations of the broadcast medium,” a rationale that “does not readily translate into a justification for regulation of other means of communication.”[237] The Court has also clarified that its limited holding in Red Lion did not create a right of access that trumps the editorial discretion of broadcasters. The Court instead held that “broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations.”[238]

The Supreme Court’s decision upholding limited rights of access to cable systems was also based on a finding of scarcity.[239] Congress extended must carry rights only to local, over-the-air broadcasters, who are permitted to access only up to two-thirds of a cable operator’s total channel capacity.[240] In Turner II, a plurality of the Court held that Congress had justified these limited access rights based on “substantial evidence” that cable operators possessed monopoly market power sufficient to cause “significant financial hardship” to broadcasters.[241] Only one justice believed the government could justify even the limited restriction on editorial discretion imposed by the must carry rules without a finding of monopoly market power,[242] whereas four justices would have held that the facts regarding cable market power were insufficient to demonstrate that the must carry rules were narrowly tailored.[243] The Turner decisions indicate that, in the absence of a finding of significant market power, even limited intrusions on the editorial discretion of the press are unconstitutional.

There are significant distinctions between the open Internet rules and the regulations at issue in Red Lion and Turner II. First, the total ban on ISPs’ exercise of editorial discretion in the Second Internet Order is not limited in scope like the “fairness doctrine” in Red Lion or the “must carry” rules in Turner II. The total ban benefits all content providers, even those that possess significant market power themselves, and restricts all ISPs, even those who have no appreciable market power or lack the capacity to transmit more than one video stream at a time. Second, the Second Internet Order lacks substantial evidence that ISPs have sufficient market power to harm edge providers or consumers. The FCC erroneously relied on the D.C. Circuit Court’s opinion in Verizon v. FCC to conclude that the open Internet rules were justified without finding that ISPs have market power.[244] As noted above, however, the D.C. Circuit addressed only the FCC’s statutory authority, not the First Amendment, and the previous rules did not impose a total ban on editorial discretion. Congress is free to authorize FCC regulation in the absence of scarcity, but that does not mean the delegation is constitutional. Congress has no more authority to abridge the freedom of the press than the FCC, and Supreme Court precedent requiring a detailed factual showing of scarcity to justify restrictions on the editorial discretion of the press binds Congress and the FCC alike.[245]

 

[1] See Preserving the Open Internet, Report and Order, FCC 10-201, 25 FCC Rcd. 17905 (2010) (“First Internet Order”).

 

[2] See Verizon v FCC, 740 F.3d 623 (D.C. Cir. 2014).

 

[3] See Protecting and Promoting the Open Internet, Report and Order on Remand, Declaratory Ruling, and Order, FCC 15-24, 2015 WL 1120110 (2015) (“Second Internet Order”).

 

[4] See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969).

 

[5] See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 197 (1997) (“Turner II”).

 

[6] See Fred Campbell, Net Neutrality: FCC Theory Would Extend Beyond ISPs Under Title II (Aug. 13, 2014), available at https://techknowledge.center/blog/2014/08/net-neutrality-fcc-theory-would-extend-beyond-isps-under-title-ii/.

 

[7] Ex parte Jackson, 96 U.S. 727, 728 (1877).

 

[8] The Supreme Courts refers to this right as the “liberty of circulation.” See id. at 733. See also Grosjean v. Am. Press Co., 297 U.S. 233, 244-45 (1936) (holding that a license tax imposed on advertising restricted circulation.).

 

[9] See Cumberland Tel. & Tel. Co. v. Kelly, 160 F. 316, 318 (6th Cir. 1908).

 

[10] U.S. Const. amend. I.

 

[11] See Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459, 463-66 (2011).

 

[12] See Grosjean, 297 U.S. at 245-46.

 

[13] See Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94, 125 (1973) (“The presence of these risks [of gatekeeper control] is nothing new; the authors of the Bill of Rights accepted the reality that these risks were evils for which there was no acceptable remedy other than a spirit of moderation and a sense of responsibility—and civility—on the part of those who exercise the guaranteed freedoms of expression.”)

 

[14] The Second Internet Order does not address how the FCC’s First Amendment rationale affects the ability of the people to challenge future regulations aimed at censoring Internet speech.

 

[15] See Sable Commc’ns of California, Inc. v. FCC, 492 U.S. 115, 133 (1989) (J. Scalia, concurring) (“Finally, I note that while we hold the Constitution prevents Congress from banning indecent speech in this fashion, we do not hold that the Constitution requires public utilities to carry it.”)

 

[16] Jackson, 96 U.S. at 732 (1877).

 

[17] See Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94, 123-25 (1973).

 

[18] See Promoting Innovation and Competition in the Provision of Multichannel Video Programming Distribution Services, Notice of Proposed Rulemaking, FCC 14-210 (Dec. 19, 2014).

 

[19] According to the Newspaper Association of America, more Americans are now reading newspapers online than in print. See Newspaper Association of America, The Evolution of Newspaper Innovation (Apr. 9, 2014), available at http://www.naa.org/innovation.

 

[20] See Ithiel De Sola Pool, Technologies of Freedom (Belknap Press, Kindle Edition) at Loc 315 (referring to convergence in the pre-Internet era).

 

[21] Id. at Loc 301.

 

[22] Id. at Loc 315-16. See also Citizens United, 558 U.S. at 352 (“With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.”).

 

[23] Second Internet Order at ¶ 544.

 

[24] See Jackson, 96 U.S. at 733.

 

[25] Id.

 

[26] See Frequency Asked Questions at thejnet.com.

 

[27] See Second Internet Order at ¶ 8.

 

[28] See Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, Declaratory Ruling and Notice of Proposed Rulemaking, FCC 02-77 (2002).

 

[29] See Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, Report and Order and Notice of Proposed Rulemaking, FCC 05-150 (2005).

 

[30] See Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, Policy Statement, FCC 05-151 (2005).

 

[31] See Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications, Memorandum Opinion and Order, FCC 08-183 (2008).

 

[32] See Second Internet Order at ¶ 65.

 

[33] Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569-70 (1995).

 

[34] See http://www.freethechildren.com/get-involved/campaigns/we-are-silent/.

 

[35] Second Internet Order at ¶ 78.

 

[36] See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (Burger, C.J., concurring) (“There is no fundamental distinction between expression and dissemination.”).

 

[37] See nn. 11-12, supra.

 

[38] Eugene Volokh, Is the Freedom of the Press “Redundant” of the Freedom of Speech? (Apr. 4, 2011), available at http://volokh.com/2011/04/04/is-the-freedom-of-the-press-redundant-of-the-freedom-of-speech/.

 

[39] See Second Internet Order at ¶ 547.

 

[40] See, e.g., Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 959 (1984) (noting that charitable solicitations are so intertwined with speech that they are entitled to the protections of the First Amendment).

 

[41] See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978).

 

[42] See Bigelow v. Virginia, 421 U.S. 809, 829 (1975), quoting 2 Z. Chafee, Government and Mass Communications 633 (1947).

 

[43] See id.

 

[44] Ex parte Jackson, 96 U.S. 727, 728 (1877).

 

[45] Id. at 728.

 

[46] See Leach v. Carlile, 258 U.S. 138, 141 (1922) (J. Holmes, dissenting).

 

[47] See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969).

 

[48] See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 639 (1994) (“Turner I”).

 

[49] See Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 737-38 (1996).

 

[50] Tim Wu, Amicus Brief, USCA Case #11-1355 (filed Nov. 15, 2012), available at https://www.fcc.gov/document/amicus-brief-tim-wu-no-11-1355-dc-cir.

 

[51] See id.

 

[52] See Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1, 9 (1877).

 

[53] See Jackson, 96 U.S. at 728-33.

 

[54] See id. at 733.

 

[55] Id.

 

[56] See Turner I, 512 U.S. 622, 629.

 

[57] Snyder v. Phelps, 562 U.S. 443 (2011).

 

[58] The First Amendment applies to private communications to the extent associational rights are implicated. See Am. Civil Liberties Union v. Clapper, No. 14-42-CV, 2015 WL 2097814 at 10 (2d Cir. May 7, 2015).

 

[59] Katz v. United States, 389 U.S. 347, 352 (1967).

 

[60] See United States v. Choate, 576 F.2d 165, 174-75 (9th Cir. 1978).

 

[61] See Katz, 389 U.S. at 352.

 

[62] See Cumberland Tel. & Tel. Co. v. Kelly, 160 F. 316, 318 (6th Cir. 1908). See also Olmstead v. United States, 277 U.S. 438, 465 (1928) (“By the invention of the telephone 50 years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place.”), overruled by Katz v. United States, 389 U.S. 347 (1967).

 

[63] Cumberland, 160 F. at 318.

 

[64] See Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1, 9 (1877).

 

[65] See id at 9.

 

[66] See id.

 

[67] See Turner I, 512 U.S. at 629.

 

[68] Id. at 636 (emphasis added).

 

[69] Jackson, 96 U.S. at 732.

 

[70] See Turner I, 512 U.S. at 636. (stating that cable operators exercise editorial discretion either through original programming or “by exercising editorial discretion over which stations or programs to include in its repertoire” (emphasis added)).

 

[71] See United States v. W. Elec. Co., 900 F.2d 283, 310-11 (D.C. Cir. 1990).

 

[72] See Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 737-38 (1996).

 

[73] See, e.g., U.S. Postal Serv. v. Council of Greenburgh Civic Associations, 453 U.S. 114, 126-27 (1981).

 

[74] Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 737-38 (1996) (J. Thomas, concurring in part and dissenting in part).

 

[75] See Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94, 112-13 (1973).

 

[76] See Jackson, 96 U.S. at 733-35.

 

[77] Id. at 735.

 

[78] See id.

 

[79] See U.S. Postal Serv. v. Council of Greenburgh Civic Associations, 453 U.S. 114, 126-27 (1981).

 

[80]

Id. at 129-30, quoting Greer v. Spock, 424 U.S. 828, 836 (1976).

 

[81]

See Greenburgh, 453 U.S. 114, 128-31.

 

[82]

Id. at 131 (emphasis added).

 

[83]

See id. at 125, quoting S. Rep. No. 742, 73d Cong., 2d Sess., 1 (1934) (finding that the practice of depositing materials in mailboxes without paying postage was “depriving the Post Office Department of considerable revenue on matter which would otherwise go through the mails.”).

 

[84]

Id. at 123.

 

[85]

See Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, Report and Order and Notice of Proposed Rulemaking, FCC 05-150 at ¶¶ 41-46 (2005).

 

[86]

See Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 737-38 (1996).

 

[87]

See Petition to Deny of Netflix, Inc., MB Docket No. 14-57 at p. 57 (filed Aug. 25, 2014), available at apps.fcc.gov/ecfs/document/view?id=7521819696&_ga=1.235764675.337222476.1409081769.

 

[88]

See Second Internet Order at ¶ 200.

 

[89]

Id. at 133.

 

[90]

Laird v. Tatum, 408 U.S. 1, 12-13 (1972), quoting Ex parte Levitt, 302 U.S. 633, 634 (1937) (emphasis added).

 

[91]

Warth v. Seldin, 422 U.S. 490, 499 (1975).

 

[92]

Id.

 

[93]

See id. at 500.

 

[94]

See United States v. W. Elec. Co., 900 F.2d 283, 310 (D.C. Cir. 1990) (holding that consumers and non-federal regulators lacked standing to challenge the district court’s lifting of certain provisions in the antitrust consent decree that led to the breakup of the Bell telephone system).

 

[95]

See Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956-57 (1984).

 

[96]

Broadrick v. Oklahoma, 413 U.S. 601, 612-13 (1973).

 

[97]

See id.

 

[98]

See Time Warner Cable Inc. v. FCC, 729 F.3d 137, 155 (2d Cir. 2013).

 

[99]

See id. at 155, 160.

 

[100]

See, e.g., Richard A. Hindman, The Diversity Principle and the MFJ Information Services Restriction: Applying Time-Worn First Amendment Assumptions to New Technologies, 38 Cath. U. L. Rev. 471, 486-88 (1989) (“The Court’s decision to uphold government mandated access to the electronic media under the FCC’s personal attack rules, and strike down a Florida personal attack statute mandating access to a newspaper, cannot be reconciled except by looking at the medium involved.”).

[101] See id.

 

[102] See Denver Area Educ. Telecommunications Consortium, Inc., 518 U.S. at 812 (J. Thomas, concurring in part and dissenting in part) (“Over time, however, we have drawn closer to recognizing that cable operators should enjoy the same First Amendment rights as the nonbroadcast media.”).

 

[103] Citizens United, 558 U.S. at 364 (internal citations omitted).

 

[104] Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2733 (2011).

 

[105] Citizens United, 558 U.S. at 319.

 

[106]  See Brown, 131 S. Ct. at 2734 (2011) (holding that video games are protected by the First Amendment), citing United States v. Stevens, 559 U.S. 460, 472 (2010) (holding that depictions of animal cruelty are constitutionally protected).

 

[107] See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997).

 

[108] Second Internet Order at ¶ 548, n. 1694.

 

[109] See Brown, 131 S. Ct. at 2734.

 

[110] See Ex parte Jackson, 96 U.S. 727, 733.

 

[111]  See Newspaper Association of America, The Evolution of Newspaper Innovation (Apr. 9, 2014), available at http://www.naa.org/innovation.

 

[112] Second Internet Order at ¶ 553.

 

[113] See United States v. O’Brien, 391 U.S. 367, 376-77 (1968).

 

[114]

See id. at 376.

 

[115] See id. at 388-89 (J. Harlan, concurring).

 

[116] Few Supreme Court cases have involved outright bans on speech. See Denver Area Educ. Telecommunications Consortium, Inc., 518 U.S. at 809 (J. Kennedy, dissenting).

 

[117] See Citizens United, 558 U.S. at 335 (stating that the First Amendment was drafted to prohibit government licensing laws implemented in 16th- and 17th-century England).

 

[118] See Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004) (applying strict scrutiny to a statute restricting sexually explicit materials on the Internet).

 

[119] Second Internet Order at pp. 283-84.

 

[120] See id. at ¶¶ 218-220.

 

[121] See id. at ¶ 216 (emphasis added).

 

[122] See Second Internet Order at ¶ 217.

 

[123] See id. at ¶ 127.

 

[124] See Citizens United, 558 U.S. at 350.

 

[125] Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).

 

[126] See, e.g., Bigelow, 421 U.S. at 818, quoting Ginzburg v. United States, 383 U.S. 463, 474 (1966). (“The existence of ‘commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.’”).

 

[127] See Tornillo, 418 U.S. 241, 258.

 

[128] See Bigelow, 421 U.S. at 818, quoting Ginzburg v. United States, 383 U.S. 463, 474 (1966).

 

[129] See Elizabeth L. Einstein, The Printing Press as an Agent of Change, p. 22 (Cambridge University Press, 14th printing, 2009).

 

[130] See id. at p. 23.

 

[131] See id. (“It seems more accurate to describe many publishers as being both businessmen and literary dispensers of glory.”).

 

[132] The Press Clause has not been amended since its initial ratification.

 

[133] See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

 

[134] United States v. Eichman, 496 U.S. 310, 315 (1990) (emphasis in original).

 

[135] See Second Internet Order at ¶ 554.

 

[136] See Eichman, 496 U.S. at 315-16.

 

[137] See Second Internet Order at ¶ 7.

 

[138] Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Sixteenth Report, FCC 15-41 at ¶ 260 (2015) (“Sixteenth Report”).

 

[139] See Sixteenth Report at ¶¶ 96-100.

 

[140] See Second Internet Order at ¶ 7.

 

[141] Einstein, supra n. 129 at p. 3.

 

[142] See id. at p. xvi.

 

[143] Id. at p. 33.

 

[144] See Einstein, supra n. 129 at p. 43, quoting Francis Bacon, Novum Organum, Aphorism 129.

 

[145] See id. at pp. 44-45.

 

[146] Id. at p. 72.

 

[147] Id. at pp. 73-75.

 

[148] See Citizens United, 558 U.S. at 339.

 

[149] Id.

 

[150] See id. at 340.

 

[151] 418 U.S. 241 (1974).

 

[152] See Second Internet Order at ¶ 20.

 

[153] Compare the factual recitation in Tornillo with the facts cited in the Second Internet Order.

 

[154] Tornillo, 418 U.S. at 256.

 

[155] See Second Internet Order at ¶ 556.

 

[156] Tornillo, 418 U.S. at 256.

 

[157] Id. at 256-57 (internal citations omitted).

 

[158] See Second Internet Order at ¶ 559, n. 1698.

 

[159] See 2015 Broadband Progress Report and Notice of Inquiry on Immediate Action to Accelerate Deployment, FCC 15-10 at ¶ 20 (Feb. 4, 2015) (“Broadband Progress Report”).

 

[160] Id. at ¶ 3.

 

[161] Id. at ¶ 29.

 

[162] Id.

 

[163] See id. at ¶ 47.

 

[164] See id.

 

[165] See Connect America Fund, Report and Order and Further Notice of Proposed Rulemaking, FCC 11-161, 26 FCC Rcd. 17663 at ¶¶ 4-10 (2011).

 

[166] See Connect America Fund, Report and Order, FCC 14-190 at ¶¶ 27-28 (2014).

 

[167] See Tornillo, 418 U.S. 241, 257.

 

[168] See Second Internet Order at ¶ 556.

 

[169] Tornillo, 418 U.S. 241, 258 (1974) (citing Z. Chafee, Government and Mass Communications 633 (1947) (asking “how can the state force abstention from discrimination in the news without dictating selection?”).

 

[170] Second Internet Order at ¶ 553.

 

[171] See id. at ¶ 80.

 

[172] See, e.g., Reply Comments of the Center for Boundless Innovation, GN Docket No. 14-28 at pp. 27-33 (noting, among other things, that Apple uses its exclusive control over its mobile operating system to decide which applications it will allow iPhone and iPad users to access over the Internet).

 

[173] See Second Internet Order at ¶¶ 186-224.

 

[174] See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000).

 

[175] See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 312 (2010).

 

[176] Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2740 (2011).

 

[177] See id. at 2740 (noting that the state had singled out purveyors of video games for disfavored treatment without giving a persuasive reason why).

 

[178] See Turner I, 512 U.S. 622, 630-32.

 

[179] See id. at 644.

 

[180] See id., citing Tornillo, 14 U.S. at 256-57.

 

[181] See 412 U.S. 94.

 

[182] See Second Internet Order at ¶ 207-12.

 

[183] See id. at ¶ 212.

 

[184] See id. at ¶ 207.

 

[185] Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94, 1672 (1973).

 

[186] See Second Internet Order at ¶ 554-55.

 

[187] See id. at ¶ 556.

 

[188] See id. at ¶¶ 556-57 (concluding that the ability of ISPs to exercise editorial discretion is a “special characteristic justifying differential treatment” of ISPs as compared to other speakers).

 

[189] New York Times v. Sullivan, 376 U.S. 254, 266 (1964).

 

[190] Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727, 747-48 (1996).

 

[191] See Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2734 (2011).

 

[192] See United States v. Stevens, 559 U.S. 460, 469-70 (2010).

 

[193] See Brown v. Entm’t Merchants Ass’n, 131 S. Ct. at 2734.

 

[194] “When First Amendment compliance is the point to be proved, the risk of non persuasion . . . must rest with the Government, not with the citizen.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 818 (2000).

 

[195] See Second Internet Order at ¶ 554.

 

[196] See Nat’l Tel. Co-op. Ass’n v. F.C.C., 563 F.3d 536, 541 (D.C. Cir. 2009).

 

[197] Minority Television Project, Inc. v. F.C.C., 736 F.3d 1192, 1212 (9th Cir. 2013) cert. denied, 134 S. Ct. 2874, 189 L. Ed. 2d 834 (2014) (Kozinski, C.J., dissenting).

 

[198] Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994).

 

[199] See United States v. Microsoft Corp., 253 F.3d 34, 49 (D.C. Cir. 2001), quoting Howard A. Shelanski & J. Gregory Sidak, Antitrust Divestiture in Network Industries, 68 U. Chi. L. Rev. 1, 8 (2001).

 

[200] See id. at 83-84 (D.C. Cir. 2001) (noting failure to demonstrate that network effects were significant enough to confer monopoly power).

 

[201] See Ithiel De Sola Pool, Technologies of Freedom (Belknap Press, Kindle Edition) at Loc 1009 (noting that “the synergy between postal delivery and other businesses, like newspaper publishing, can go either way”).

 

[202] See Verizon, 740 F.3d 623, 645 (emphasis added).

 

[203] Standard economic theory indicates that market forces ultimately balance these incentives in effectively competitive markets.

 

[204] See, e.g., Commission Staff Working Document, SWD(2013) 329 at p. 44, available at http://ec.europa.eu/smart-regulation/impact/ia_carried_out/docs/ia_2013/swd_2013_0329_en.pdf (accompanying the document Commission Recommendation (2013/466/EU) of 11 September 2013 on consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment, OJ L 251, 12.9.2013, pp. 13-32, available at http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1417542529933&uri=CELEX:32013H0466).

 

[205] United States Telecom Ass’n v. FCC, 290 F.3d 415, 429 (D.C. Cir. 2002), cert. denied sub nom. WorldCom, Inc. v. United States Telecom Ass’n, 538 U.S. 940 (2003).

 

[206] See US Telecom Ass’n v. FCC, 359 F.3d 554, 563 (D.C. Cir. 2004).

 

[207]

See Second Internet Order at ¶ 125.

 

[208] See W. Union Tel. Co. v. Call Pub. Co., 181 U.S. 92, 97-100 (1901).

 

[209] Id. at 99 (emphasis added).

 

[210] See id. at 101-102.

 

[211] W. Union Tel. Co. v. Call Pub. Co., 181 U.S. 92, 100 (1901).

 

[212] See S. Pac. Commc’ns Co. v. Am. Tel. & Tel. Co., 740 F.2d 980, 1009-10 (D.C. Cir. 1984).

 

[213] See 47 U.S.C § 202(a).

 

[214] See 47 U.S.C § 201(a).

 

[215] See 47 U.S.C § 201(b).

 

[216] Id.

 

[217] See Rogers Radio Commc’ns Servs., Inc. v. F.C.C., 751 F.2d 408, 414 (D.C. Cir. 1985).

 

[218] See Second Internet Order at ¶ 18, n. 18, ¶ 32.

 

[219] Rogers Radio Commc’ns Servs., Inc. v. F.C.C., 751 F.2d 408, 415 (D.C. Cir. 1985) (emphasis added, internal citations omitted).

 

[220] Fred Campbell, Netflix Blocking Internet Access to HD Movies, blog post (Jan. 17, 2013), available at https://techknowledge.center/blog/2013/01/netflix-blocking-internet-access-to-hd-movies/.

 

[221] Id.

 

[222] See 47 U.S.C §§ 153(11) (“a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier”).

 

[223] See 47 U.S.C §§ 522(5), (13).

 

[224] See Revision of the Commission’s Program Access Rules, Report and Order in MB Docket Nos. 12-68, 07-18, 05-192, Further Notice of Proposed Rulemaking in MB Docket No. 12-68, Order on Reconsideration in MB Docket No. 07-29, FCC 12-123 (2012).

 

[225] See id. at ¶ 2.

 

[226] See Promoting Innovation and Competition in the Provision of Multichannel Video Programming Distribution Services, Notice of Proposed Rulemaking, FCC 14-210 (Dec. 19, 2014).

 

[227] U.S. Postal Service, Postage Rates for Periodicals: A Narrative History, available online at https://about.usps.com/who-we-are/postal-history/periodicals-postage-history.htm.

 

[228] See Hannegan v. Esquire, Inc., 327 U.S. 146, 151 (1946).

 

[229] See id.

 

[230] See Hannegan v. Esquire, Inc., 327 U.S. 146 (1946).

 

[231]  See id.

 

[232] Lamont v. Postmaster Gen. of U. S., 381 U.S. 301, 305 (1965), quoting United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (J. Holmes, dissenting).

 

[233] See Ithiel De Sola Pool, Technologies of Freedom (Belknap Press, Kindle Edition) at Loc 1027.

 

[234] See id.

 

[235]  Other cases upholding restrictions on the freedom of the press have typically involved some form of express agreement. See, e.g, Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996) (noting that cable operators typically agree to provide programming access to municipalities during the local franchising process).

 

[236] 395 U.S. 367, 388 (1969).

 

[237] Turner I, 512 U.S. 622, 637, quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74 (1983).

 

[238] See Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 673 (1998). See also Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94, 112-14 (1973), quoting Report of Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249 (1949) (“The basic principle underlying that responsibility is ‘the right of the public to be informed, rather than any right on the part of the Government, any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter . . . .’”).

 

[239] See Turner II at 197.

 

[240] See Turner I at 630-32.

 

[241] See Turner II, 520 U.S. 180, 211.

 

[242] See id. at 225 (J. Breyer, concurring).

 

[243] See id. at 229 (dissenting option of J. O’Connor, with whom J. Scalia, J. Thomas, and J. Ginsburg join).

 

[244] See Second Internet Order at ¶ 11, n. 12.

 

[245] See Turner I, 512 U.S. 622, 666-67.

 

 

 

 

 

 

 

 

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