FAN 79 (First Amendment News) Conduits and Communication: Is “Mere” Transmission Speech? — Gov. Says No in Net Neutrality Case
“[T]here is no real basis for contending that mere transmission of bits is ‘speech.'”
— Stuart Minor Benjamin (2014)
The above statement (by a former FCC distinguished scholar and now a Duke Law professor) is quoted approvingly in the government’s brief in United States Telecom Association, et al v. Federal Communications Commission. The government began its brief by declaring: “This case is about whether the Federal Communications Commission has the authority to ensure that the Internet, the central means of communication in the 21st Century, remains open to all Americans.” To that end the government’s lead lawyers, William J. Baer and Jonathan Sallet, made the following arguments in Part VI of their brief:
“The Open Internet Rules are Consistent with the First Amendment”
- “[T]he rules do not impair broadband providers’ First Amendment rights at all . . . because broadband providers are not acting as speakers but instead as conduits for the speech of others. . . .”
- “The [FCC] Order does not curtail broadband providers’s free speech rights because providers of Broadband Internet Access Service are not acting as speakers delivering their own messages, but instead serve as conduits for the speech of others.”
- “For conduct to possess “sufficient communicative elements to bring the First Amendment into play,” it must manifest “an intent to convey a particularized message” and “be understood [as a message] by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (internal quotation marks omitted). The provision of broadband service lacks these essential characteristics. . . . Nor is there anything in the record to suggest that companies providing mass-market retail broadband service as defined in the Order are seeking to convey any particularized message to their users. Instead, when providing Broadband Internet Access Service, broadband providers function (and are understood by their users to function) simply ‘as conduits for the speech of others, not as speakers themselves.'”
- “By simply delivering content as requested by their customers, broadband providers are no different from telephone companies or FedEx. See Benjamin, 127 HARV. L. REV. F. at 348-49.”
- “Alamo’s First Amendment challenge thus fails here for the same reason as the challenge in Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006). In FAIR, universities argued that a law requiring them to allow military recruiters to use their job-recruiting facilities violated the First Amendment by requiring the universities to carry the military’s speech. The Supreme Court unanimously rejected that claim, explaining that the access requirement “regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Id. at 60. Thus, ‘the schools are not speaking when they host interviews and recruiting receptions.’ Id. at 64. Here, as in FAIR, the Open Internet rules ‘regulate conduct, not speech,’ because they address only what broadband providers ‘must do . . . not what they may or may not say.’ Id. at 60. The rules therefore fall outside the ambit of the First Amendment.”
→ On December 4, 2015 the case will be argued in the Court of Appeals for the District of Columbia.
→ The FCC Order can be found here
→ For links to the various Orders and Briefs in the case, go here.
Another View re First Amendment Coverage?
The [FCC’s] Order implicates the competing First Amendment interests of individual users to speak and seek speech online, and of ISPs to transmit speech without undue government interference.
UN Commission Calls for Web Censorship
This from Caitlin Dewey writing in the Washington Post: “It may not have intended to, precisely, but the United Nations just took sides in the Internet’s most brutal culture war.On Thursday, the organization’s Broadband Commission for Digital Development released a damning “world-wide wake-up call” on what it calls ‘cyber VAWG,’ or violence against women and girls. The report concludes that online harassment is “a problem of pandemic proportion” — which, nbd, we’ve all heard before.”
“But the United Nations then goes on to propose radical, proactive policy changes for both governments and social networks, effectively projecting a whole new vision for how the Internet could work.”
“Under U.S. law — the law that, not coincidentally, governs most of the world’s largest online platforms — intermediaries such as Twitter and Facebook generally can’t be held responsible for what people do on them. But the United Nations proposes both that social networks proactively police every profile and post, and that government agencies only ‘license’ those who agree to do so. . . .”
→ The Commission’s Report can be found here.
Reporters Committee Levels Objections to “Right to be Forgotten” Order
In a letter dated September 14, 2015, the Reporters Committee for Freedom of the Press and 29 other media and news organizations wrote to President Isabelle Falque-Pierrotin of the Commission nationale de l’informatique et des libertés. Here are some excerpts from that letter:
“The Reporters Committee for Freedom of the Press and the undersigned news and journalism organizations write to express concerns regarding the notice given by CNIL to Google Inc. on May 21, 2015 ordering the company to apply new delisting requirements to all domains of the search engine and not merely to its domains in the European Union. In making its order public, CNIL referred specifically to its desire to ‘inform . . . content publishers . . . of the scope . . . of the right to obtain erasure of personal data.’ It is in that spirit of dialogue that we offer these objections.”
In their letter the groups raised four basic objections:
- “CNIL’s action raises concerns about encroachment on speech and press freedoms worldwide as well as on the right of access to information.”
- “Mere accessibility of content on the Internet is not a standard; it’s a surrender to an Internet governed by the least protective speech laws around the world.”
- “Search engines must be able to notify publishers of delisting,” and
- “he CNIL order does not adequately protect other fundamental rights, including the fundamental right of free expression and access to information.”
The groups closed by stating: “We recognize France’s right to weigh the competing interests between promoting personal privacy and data protection and protecting free expression and access to information in a way that reflects its values. But when CNIL seeks to compel Internet users outside of the EU to live with the balance it has struck in this area, it crosses a line and creates an ominous new precedent for Internet censorship that jeopardizes speech and press freedoms worldwide. . . .”
Into the “Weeds” with Posner
Two days ago a Seventh Circuit panel handed down its decsion in Discount, Inn, Inc. v. City of Chicago. In that case a Chicago agency ruled that the Petitioner violated two city ordinances — a weed ordinance and a fencing ordinance. Among other claims, the Petitioner alleged that the weed ordinance “is vague and forbids expressive activity protected by the First Amendment. The concern is that native plants, while sharing with weeds the property of not having to be planted, are, unlike weeds, beautiful and nondestructive when properly managed.”
Photos of said Illinois native plants are included in Judge Richard Posner’s opinion. On that score Judge Posner noted: “A legitimate concern of property owners who grow native plants is that enforcers of the weed ordinance will mistake native plants for ‘weeds,’ an undefined term in the ordinance . . . .” But that point did not save the day for the Petitioner: “Even if we assume (as is plausible) that the weed ordinance does not embrace native‐plant gardens, this can do nothing for Discount Inn, because it does not argue that its properties contain gardens of native or other decorative plants. Instead it argues that the ten‐inch ceiling on weeds violates the free‐speech clause of the First Amendment.”
Turning to the merits of the First Amendment issue, Posner observed: “Though plants do not speak, this need not exclude all gardens from the protection of the clause, for the clause has been expanded by judicial interpretation to embrace other silent expression, such as paintings. . . . The gardens of Sissinghurst Castle and of Giverny might well be recognized as works of art were they in the United States. There may be gardens in Chicago, whether consisting of native or other plants, that are or should be recognized as works of art. . . . But the plaintiff’s claim that the free‐speech clause insulates all weeds from public control is ridiculous. It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or intends or aspires to exhibit them in museums or flower shows. Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.”
Posner then turned to his garbage-and-Beethoven argument:
Taken to its logical extreme, the plaintiff’s defense of the weed would preclude any efforts by local governments to prevent unsightly or dangerous uses of private property. Homeowners would be free to strew garbage on their front lawn, graze sheep there, and broadcast Beethoven’s Fifth Symphony 24 hours a day through outdoor loudspeakers — all in the name of the First Amendment.
[ht: Howard Bashman, How Appealing]
KY Campaign Donations Law Challenged
A recent story in the Lexington Herald-Leader reported on a new challenge to campaign finance laws, one that relates to political bribes or their equivalent. Here is an excerpt:
“Republican state Sen. John Schickel and two Libertarian political candidates are suing to overturn state laws limiting campaign donations to $1,000 and prohibiting gifts to legislators from Frankfort lobbyists.”
“The politicians say the laws violate their constitutional rights to free speech and equal protection by restricting their access to people who want to help them. But state regulators say the laws are meant to prevent bribery at the state Capitol. Most were enacted after Operation BOPTROT, an FBI investigation in 1992 that exposed 15 current or former legislators who sold their votes. Don Blandford, the House speaker, was among those sent to prison. . . .”
“They are challenging the state’s $1,000-per-election contribution limit to individual candidates. They also want the court to strike down ethics rules prohibiting Frankfort lobbyists from donating campaign money to legislators or legislative candidates; barring the employers of lobbyists from donating while the General Assembly is in session; and outlawing gifts from lobbyists to legislators, including private meals.”