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.

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