Larry Tribe’s Lochner?

The net neutrality debate is heating up as an epic battle between Google and carriers like Verizon, SBC, and Comcast. Now Larry Tribe is weighing in to cut off the debate, apparently arguing that virtually any regulation of the big carriers’ treatment of content could violate the First Amendment (according to this report):

Professor Tribe was asked . . . whether he thought broadband providers should be allowed to censor music lyrics critical of the President of the United States. Tribe rephrased the question: Can [broadband providers] be forced to act as common carriers? [and. . . ] cited Hurley . . . 515 U.S. 557 (1995) as the decision that “would probably apply here.” In that case, the organizers of a parade did not want to include among the marchers a group espousing a view with which the organizers did not agree. The Supreme Court ruled that the parade was not merely a conduit for the speech of participants.

The Court contrasted the parade organizers with cable operators who were the subject of Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) by noting that cable, unlike a parade permit, confers a “monopolistic opportunity to shut out some speakers.” But guess what? Like it or not, cable doesn’t confer a monopolistic opportunity anymore.

Um, does Comcast have a “message” when it brings me 500 channels? I’m mystified by the parade analogy.

As our guest blogger Neil Richards has noted, (and as Oren Bracha and I argue in our piece on search engine regulation), the First Amendment is the 800-pound gorilla in the room of equitable information policy. Many First Amendment absolutists would like to see it eviscerate the public’s rights to privacy and cultural self-determination. Following Richards’ work, I’m going to explore why an absolutism like Tribe’s might seem tempting, and why it is so crucial that courts resist it. In a nutshell: Tribe would do for information policy what Lochner did for economic regulation….a sad result for a thinker who so compellingly recognized “speech as power” in his book Constitutional Choices.


Here is the philosophical foundation of Tribe’s position, excerpted from his article “The Constitution in Cyberspace:”

[Given that] networks and network associations acquire quasi-governmental powers as they necessarily take on such tasks as mediating their members’ conflicting interests. . . . [a] tempting conclusion is that, to protect the free speech and other rights of *users* in such private networks, judges must treat these networks not as associations that have rights of their own *against* the government but as virtual “governments” in themselves — as entities against which individual rights must be defended in the Constitution’s name. Such a conclusion would be misleadingly simplistic.

There are circumstances, of course, when non-governmental bodies like privately owned “company towns” or even huge shopping malls should be subjected to legislative and administrative controls by democratically accountable entities, or even to judicial controls as though they were arms of the state — but . . . [i’]t’s a fallacy to suppose that, just because a computer bulletin board or network or gateway is *something like* a shopping mall, government has as much constitutional duty — or even authority — to guarantee open public access to such a network as it has to guarantee open public access to a privately owned shopping center like the one involved in the U.S. Supreme Court’s famous *PruneYard Shopping Center* decision of 1980. . . . . [N] othing about any

new technology suddenly erases the Constitution’s enduring value of restraining *government* above all else, and of protecting all private groups, large and small, from government.

Indeed, courts must protect the telcos; they certainly don’t have the money to lobby!

Tribe continued along these lines in a recent speech in Aspen. As Adam Thierer summarizes,

Prof. Tribe began by noting that the Supreme Court had perpetrated a “profound fallacy” in the Red Lion and Pacifica cases in holding that spectrum scarcity or a medium’s “pervasiveness” in society could be used as a rationale for censorship of broadcasters or any other media operator. And he argued that although “today’s FCC continues to sing the Pacifica tune,” if the Supreme Court reconsidered Red Lion or Pacifica today, “the odds are overwhelming that the Court [would overturn them]” because the Court would recognize that those rationales were probably never valid but are certainly not valid in an age of media abundance and cross-platform convergence.

Hmmm…I wonder if Prof. Tribe is now also willing to jettison the campaign finance rules he once so eloquently defended? He once said that “the decision to draw a bright line between the law of the public forum and teh law of campaign regulation is, intentionally or not, a decision to favor methods of communication employed by the rich over those employed by the poor.” Wouldn’t the telecosm of media diversity he now espies also give every speaker the megaphone they need to get their message out? I mean, there’s no rural broadband crisis or duopolistic markets out there, right? The evolution of his position since the early 1980s is quite striking; consider this quote from Speech as Power (197-198 of Constitutional Choices):

[M]ore and more of the most important forums and means of communication are coming under the control of fewer and fewer owners. These changes in access to and control over the forms of public communication have eaten away at the average citizen’s rights of expression and, thus, it is not exaggerating to say that that order could be seriously threatened by a continued failure of the Court to take account of the background institutions of power and the costs of participation in public dialogue. (emphasis added)

This diagnosis is all the more appropriate today, as media consolidation accelerates. Perhaps Tribe’s extensive work for telcos has given him special insight into the situation since then….or perhaps not.*

Regardless of the roots of Tribe’s position, Richards’s piece is a must-read for anyone worried that the First Amendment will preempt network neutrality. Richardson focuses on First Amendment challenges to privacy law:

The First Amendment critics’ [of privacy law] not only ignore[] the reality that few data privacy rules actually involve speech, but also significantly overstate[] the breadth of the protection afforded by the First Amendment, because large categories of “speech” regulations (such as criminal solicitation, anticompetitive offers, and copyright infringement) do not in reality trigger heightened First Amendment scrutiny. Building upon the work of the few scholars to have examined the First Amendment in this way [like Fred Schauer and Robert Post], I suggest that much of this “speech” is either outside the scope of the freedom of speech protected by the First Amendment, or constitutes a hitherto unnoticed category of speech warranting rational basis review.

Richards makes a compelling parallel between the First Amendment critique of privacy laws and the “freedom of contract” arguments underlying Lochner:

From the perspective of privacy law, there are striking parallels between the critique’s advocacy of “freedom of information” and the discredited “freedom of contract” regime of Lochner. More importantly, from the perspective of First Amendment law, the critique threatens to obliterate the distinction between economic and political rights at the core of post–New Deal constitutionalism.

Oren Bracha and I make a similar argument in our piece on search engine regulation. We explain that search engines are a new and dominant gatekeeper that controls critical bottlenecks on the internet. Unfortunately, a few poorly reasoned district court decisions granted blanket immunity to search engines by characterizing their results as speech protected by the First Amendment. Though we have little sympathy for the claims of the particular plaintiffs in these cases, we believe they were decided in a way that could block all future scrutiny of search engine rankings.

I find it deeply puzzling and troubling that a scholar as cognizant of the destructive potential of private power as Prof. Tribe would suggest the Supreme Court silence the people’s voice in information policy. Admittedly, anyone who’s read Nuechterlein and Weiser’s magisterial Digital Crossroads can understand the many wrong turns the FCC has made over time. Given that history, we’d be wise to keep very close tabs on whatever it does in the net neutrality policy space. Nevertheless, I cannot fathom why any democratic polity would permit the First Amendment to foreclose all further public say on the basic structure of our public sphere.

*I do not know if the telcos have been or are currently paying clients of Prof. Tribe. I just included Lessig’s statement to provide some commentary on the ways in which clients in general may influence an academic’s view of things.

Hat Tip: Scott Cleland, who offers a view diametrically opposed to mine.

Frank Pasquale

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

Frank accepts comments via email, at pasqresearch@gmail.com. All comments emailed to pasqresearch@gmail.com may be posted here (in whole or in part), with or without attribution, either as "Dissents of the Day" or as parts of follow-up post(s). Please indicate in your comment whether or not you would like attribution, or would prefer your comment (if it is selected for posting) to be anonymous.

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12 Responses

  1. Flash Gordon says:

    This is all very interesting to me but I’m having a hard time understanding it. I graduated from law school 30 years ago. I recently took the Bar Exam in another state. The Bar/Bri course showed me how much my understanding of Constitutional Law was out of date and it helped me get more up to date. But this area is still a bit of a puzzle. I thought I understood Lochner but am having a hard time relating it to the net neutrality issue.

    Any documents on the web that give a beginner’s explanation that you could point me to would be greatly appreciated. This is not an area of practice for me, I just find it interesting and would like to be better informed. Thanks.

  2. erp says:

    For lies against Robert Bork, Tribe should have been disbarred and dismissed. He is anathema.

  3. David B says:

    This is rather overwrought. What, precisely, is incorrect about Tribe’s opinion, other than your view of the consequences? Modern First Amendment law is premised on the idea that the government can’t regulate speech even when that speech is seen to have bad consequences. Is your argument that sending programming to the public isn’t really speech?

  4. Frank says:

    Flash–If you click on the first link to “net neutrality” in the post, you’ll see some of my definition of the issues.

    I think Tribe is saying this: in Hurley, the Supreme Court said organizers of an Irish parade could keep gay marchers out because they felt that including them would be inconsistent with their message. Now imagine if Verizon got angry at the Washington Post’s article today on Japan’s telecom policy (I blogged that today), and decided to just slow down (or cut off) access to its subscribers. I think Tribe would say that just as the Irish parade organizers could keep gays out of their parade, Verizon could keep the Washington Post off its network.

    In my view, FAIR v. Rumsfeld may well serve as a strong enough limitation of Hurley as to make Tribe’s analogy untenable.

  5. Frank says:

    David–As Oren and I say in our search engine piece, I think the content is speech–but I don’t think providing the pipes should be thought of as speech.

    Note that the Supreme Court worries about the taxation of newspapers (Grosjean, 1936), but not the paper and ink they’re written on.

  6. Ron Coleman says:

    I only graduated law school 19 years ago but I was struggling for a topic sentence or two, myself! I think, Flash, we’ve stepped into the middle of a conversation here which is already well under way (as tends to happen when you show up at the professors’ table) (even if Glenn Reynolds invites you!).

    It sounds, though, like Tribe is the one being consistent here. We “Net people” like Net neutrality because it profoundly subsidizes our ability to publish — why else would it be the case that there are virtually no barriers to entry into the marketplace of expression (I did not say ideas!) in our time? Nothing is free, after all. On the other hand, many of us are protective of the Constitution. So this sentence is troubling:

    Many First Amendment absolutists would like to see it eviscerate the public’s rights to privacy and cultural self-determination.

    Notwithstanding the characterization (“eviscerate”), this sentence names three competing “rights”: Free speech, privacy and cultural self-determination. For 20 points, how many of those rights are in the Constitution?

  7. jimhanavan says:

    How long would Verizon have a business if it limited or delayed access to content with which it disapproved? Tribe is right. AT&T and Comcast would love it if Verizon did that even once. It would kill Verizon, because: [1] its competitors would make Verizon’s action central to their advertising; and [2] customers would drop Verizon like a hot rock. The entire “net neutrality” argument is bogus, sponsored by e-Bay, Google, etc. to have other privately owned companies [the providers] subsidize their operations at the expense of the providers’ shareholders and customers.

  8. Frank says:

    Jimhanavan,

    Competition does exist in some places, but not everywhere. Moreover, consider this argument from Gigi Sohn:

    “Since the vast majority of consumers subscribe to only one broadband access provider, there is only one way to deliver traffic to that consumer. Broadband providers can exploit this monopoly to favor or degrade the delivery of traffic from particular sources according to whether they have paid fees to the provider.”

    “This terminating monopoly is exacerbated by the high switching costs that inevitably result if one wants to change broadband providers. There is a good discussion of terminating monopolies in this paper by four professors from MIT and Carnegie Mellon. So maybe NN proponents need to hone our message a bit – when you want government to act, monopoly sounds much more urgent than duopoly or discrimination.”

    from

    http://www.freepress.net/news/21103

    More from Sohn:

    “there are numerous obstacles to becoming a broadband network provider – hence the dynamic duopoly that we now have.”

    from

    http://www.publicknowledge.org/articles/62?page=15

  9. Kurmudge says:

    The entire NN argument is another headache, because it is an argument that is just about equally strong on both sides, with, in my view, a slight edge to the ISPs over Big Search Engine (BSE, now as much fun as BFP!).

    It is an argument which, if we are lucky, will end up with both sides losing- muddled court cases in different circuits tying up the telcos and making Google’s positions unenforceable, and the FCC keeping their hands off, given that they have, indeed, messed up most everything- and promoting NN at this point would be as big an error as any of their other errors.

    The net effect is pretty negligible in this world where universal commodity wireless will gradually inhere, making the ultimate war a B2B battle between big boys (Verizon and Bankamerica, Yahoo and AT&T, select your pair) with the rest of us not affected at all. Unless the government gets involved (wrong) (again).

  10. Alex says:

    Frank,

    I don’t entirely understand your point – do you disagree with Tribe’s analysis as a matter of existing First Amendment doctrine or do you disagree with him as a matter of policy, regardless of the doctrine (i.e. that Congress (or other governmental entities) should be able to regulate “the Internet” in such a way as to maintain net neutrality)?

  11. David Wolitz says:

    Frank,

    Great post! Shades of Lochner, indeed.

    Net neutrality may or may not be good public policy, but it most assuredly IS a constitutional option. At the risk of getting much too doctrinal for a blog post, let me run through a quick sketch of an argument for the constitutionality of net neutrality regulation:

    Let’s say that Tribe and the broadband providers are right that a government-mandated net neutrality policy would diminish the editorial discretion of cable companies and telcos over the content carried in their “pipes.” That is, under a net neutrality regime, cable companies and telcos could not restrict or promote access to content pursuant to their own discretion, but would instead be required to carry all Internet content without prejudice.

    However, per Turner, net neutrality would trigger only intermediate First Amendment scrutiny — not strict scrutiny — because it would be a content-neutral regulation. That is, the purpose of net neutrality regulation would be to foster “widespread dissemination of information from a multiplicity of sources” — not to suppress or prefer any particular speech. Thus, net neutrality would not trigger the highest form of scrutiny, but rather the intermediate scrutiny discussed in United States v. O’Brien.

    Intermediate scrutiny requires that the government regulation at issue (1) promote an important governmental interest unrelated to the suppression of speech and (2) not burden speech any more than is essential.

    Net neutrality can easily pass intermediate scrutiny because (1) it promotes the important governmental interest in ensuring “uninhibited, robust, and wide-open” competition in the Internet content and applications markets and (2) its only burden on speech — potentially diminishing the editorial discretion of broadband providers — is precisely the means essential to securing the interest invoked.

    In sum, under current precedent, net neutrality would be entirely consistent with the First Amendment, even if we grant that it does “force” some speech on broadband providers.

  12. HOTI Dave says:

    I’ll withhold judgment on Tribe’s specific legal argument — I am not a lawyer, or law student, but I do consult on net neutrality issues for a group representing some ISPs and civic groups here in DC.

    And based on that, I can at least say that Tribe is onto something. Indeed, the pipes being laid today are inarguably the property of the ISPs that own them. Verizon (not part of our coalition) spent billions to get FiOS up and running. And they should be able to monetize it however they see fit.

    This could include prioritization of packets, which would be especially useful in high def video, something the Internet can’t really do right now. See Adam Penenberg on this: http://www.slate.com/id/2128201/

    But the people who are afraid ISPs would infringe on “free” speech are also creating a false impression. There is no real incentive to block bits, and there are antitrust laws to penalize those who do.