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)

Assistant Attorney General William J. Baer

Assistant Attorney General William J. Baer

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?

Electronic Frontier Foundation & ACLU amicus brief

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

Caitlin Dewey

Caitlin Dewey

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

UnknownIn 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:

  1. “CNIL’s action raises concerns about encroachment on speech and press freedoms worldwide as well as on the right of access to information.”
  2. “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.”
  3. “Search engines must be able to notify publishers of delisting,” and
  4. “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 

Pic of native Illinois weeds

Pic of native Illinois weeds

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.”

Pic of community garden in which the gardeners cultivate Illinois native plants,

Pic of community garden in which the gardeners cultivate Illinois native plants

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.”

The case is Schickel v. Dilger (Dist. Ct., E. Dist. KY). The complaint can be found here.

Senator Sheledon Whitehouse on Citizens United 

Senator Sheldon Whitehouse

Senator Sheldon Whitehouse

Writing in The Nation, Senator Sheledon Whitehouse (D-RI) took aim at the Citizens United ruling. His article is titled “The Many Sins of Citizens United.” “In order to get the ruling they wanted,” Whitehouse argues, “the conservative justices had to ignore an extensive record of political corruption.” Here is an excerpt:

With Citizens United, the Supreme Court didn’t simply confirm its well-documented preference for ruling in favor of corporate interests. The case also fits a pattern of support by conservative justices for Republican interests in election cases, whether it’s the Rehnquist Court’s Vieth v. Jubelirerdecision, which declared a field day for gerrymandering, or the Roberts Court’s Shelby County v. Holder, which gutted key voter protections and enabled conservative state legislatures to enact new barriers to minority voting.”

“So, too, did the Republican Party unduly benefit from Citizens United. Super PACs and other nonprofit organizations spent upward of $390 million in the 2012 presidential election supporting Republicans or attacking President Obama, compared with $164 million in spending by groups supporting Democrats. And so far in this election cycle, PACs and Super PACs supporting Republicans have raised 93 percent of all outside donations.”

Campus Free-Speech Watch

Geoffrey R. Stone & Will Creeley, “Restoring Free Speech on Campus,” Washington Post, Sept. 25, 2015

Stone & Creeley

Censorship in the academic community is commonplace. Students and faculty are increasingly being investigated and punished for controversial, dissenting or simply discomforting speech. It is time for colleges and universities to take a deep breath, remember who they are and reaffirm their fundamental commitment to freedom of expression. The past academic year offers a depressing number of examples of institutions of higher education failing to live up to their core mission. . . .

Free speech and academic freedom will not protect themselves. With public reaffirmation of the necessity of free speech on campus, the current wave of censorship that threatens the continuing excellence of U.S. higher education can be repudiated, as it should be, as a transitory moment of weakness that disrespects what our institutions of higher learning must represent.

  1. Tom LaVenture, “New Voices Act champion to receive First Amendment award,” Jamestown Sun, Sept. 28, 2015
  2. Editorial, “[College] Senate violates free press in first meeting of semester,” Talon Marks, Sept. 29, 2015

Headline: “Donald Trump wants the FCC to fine a critical Fox News pundit”

Yes, it’s true: See Jenna Johnson’s story in the Washington Post:

On Dissent: Its Meaning in America now available in paperback

31CwAs2niWL._SX324_BO1,204,203,200_In case you missed it, On Dissent: Its Meaning in America (Cambridge University Press) by Collins and Skover has just been released in paperback. Here is an abstract:

America values dissent. It tolerates, encourages, and protects it. But what is this thing we value? That is a question never asked. “Dissent” is treated as a known fact. For all that has been said about dissent – in books, articles, judicial opinions, and popular culture – it is remarkable that no one has devoted much, if any, ink to explaining what dissent is. No one has attempted to sketch its philosophical, linguistic, legal, or cultural meanings or usages. There is a need to develop some clarity about this phenomenon we call dissent, for not every difference of opinion, symbolic gesture, public activity in opposition to government policy, incitement to direct action, revolutionary effort, or political assassination need be tagged dissent. In essence, we have no conceptual yardstick. It is just that measure of meaning that On Dissent offers.

Forthcoming Scholarly Articles

  1. Nadia Sawicki, “Informed Consent as Compelled Professional Speech: Fictions, Facts, and Open Questions,” Washington University Journal of Law and Policy (forthcoming 2016)
  2. John Tehranian, “The New ©ensorship,” Iowa Law Review (forthcoming 2015)
  3. Wendy Knox Everette, “The FBI Has Not Been Here (Watch Very Closely for the Removal of this Sign) Warrant Canaries and First Amendment Protection for Compelled Speech,” George Mason Law Review (forthcoming 2015)
  4. Andrea J Schweitzer, “Showing Your ‘Girly Girl’ Side: First Amendment Protection for Gender Expression,” SSRN (Sept. 27, 2015)

Notable Blog Post

News, Op-eds & Blog Posts 

Liz Bell, “First Amendment Day keynote addresses online harassment: Remarks by Danielle Citron,” Daily Tarheel, Sept. 29, 2015

  1. Zoe Tillman, “Supreme Court Protesters Take First Amendment Challenge to Court,” Legal Times, Sept. 29, 2015
  2. Victoria Mirian, “Silent Sam, Carolina Hall debated on First Amendment Day,” Daily Tarheel, Sept. 29, 2015
  3. Kathryn Rubino, “Judge Rules Yelp Review Not Covered By First Amendment,” Above the Law, Sept. 28, 2015
  4. Jon Fleischaker to Deliver 10th Annual State of the First Amendment Address,” UKNOW, Sept. 28, 2015
  5. Joshua Qualls, “Journalism professor recognized for services to the First Amendment,” Kentucky Kernel, Spet. 28, 2015
  6. Gene Policinski, “First Amendment: From dream to reality, freedom facing a tough path,” GazetteXtra, Sept. 24, 2015

The Court’s 2015-2016 First Amendment Docket 

Review Granted

  1. Friedrichs v. California Teachers Association, et al.

Pending Petitions*

  1. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority
  2. Center for Competitive Politics v. Harris
  3. Yamada v. Snipes

→ Court’s Last Conference: September 28, 2015

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Last Scheduled FAN #78: “Alan Garten, Trump’s Lawyer, Threatens “Multi-million dollar” Lawsuit for Attack Ads Against His Client

Next Scheduled FAN #80: Wednesday, October 2, 2015.

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