SCOTUS Nominee Kavanaugh Bought Verizon's Silly Argument That Breaking Net Neutrality Is A 1st Amendment Right
from the not-a-good-sign dept
Back when Verizon sued to overturn the FCC’s fairly tepid 2010 net neutrality rules, the telco’s lawyers threw every legal argument at the wall they could find, no matter how ridiculous they might be. One of those claims was that the FCC’s rules somehow violated the company’s First Amendment rights, a claim that Mike (and numerous other reporters at the time) properly eviscerated:
“Verizon is effectively arguing that if it chooses not to allow a certain service to exist online that is a form of expression. Think of it this way: say Verizon decided to block Skype, because Skype is eating into its local telephone business. According to Verizon, that decision is a form of expression and the government can’t block that, since that “expression” is protected. The “newspaper” analogy that Verizon offers is completely specious, because the internet isn’t a newspaper where there’s a single publisher who chooses what goes in. The whole argument is ludicrous.”
Telling Verizon that it can’t abuse a lack of broadband competition to hinder certain services from working online is not a free speech issue, full stop. That said, painting Verizon as the victim when it’s the company’s own anti-competitive actions that were threatening small businesses and legitimate expression gives you a pretty solid grasp of the hubris of large, incumbent telecom operators.
Ultimately Verizon won the 2010 fight and had the rules scuttled due to FCC over reach (which is why Wheeler ultimately embraced Title II in 2015), but it had absolutely nothing to do with the ISP’s First Amendment argument. Still, that argument played a starring role when ISPs again sued to overturn the FCC’s tougher, 2015 rules. Comcast, AT&T, Verizon, and other major ISPs all again clung tightly to the flimsy First Amendment claim, despite even they knowing it was absurd and fundamentally unsound.
And again that didn’t work out well for ISPs, with the U.S. Court of Appeals for the D.C. Circuit fully upholding the FCC’s rules in 2016, the majority once again shooting down ISP claims that net neutrality protections violated ISPs’ First Amendment rights. From the ruling (pdf):
“Because a broadband provider does not? and is not understood by users to?”speak” when providing neutral access to internet content as common carriage, the First Amendment poses no bar to the open internet rules.”
ISPs lost again during their en banc appeal of the rules, where the same argument was shot down yet again by the majority. Again, because ISPs, which provide connectivity between the end user and the sites and content they want to access, are not speaking or exercising editorial control when they transmit data.
It should be reiterated that even ISPs like Comcast don’t actually believe their argument that net neutrality tramples their First Amendment rights; the entire effort was just a “let’s try everything and see what works” sort of affair. All ISPs have ever cared about in this argument is their ability to fatten revenues by further abusing an obvious lack of competition in broadband in creative new ways.
But it’s worth noting at least one judge bought into the ISPs’ flimsy claims that their First Amendment rights had been trampled, and that man was a certain Brett Kavanaugh (pdf), who Trump just nominated for the Supreme Court. In his dissent (pdf), Kavanaugh displays an absolutely stunning lack of fundamental common sense in parroting large ISP claims on the subject:
“Absent a showing of market power, the Government must keep its hands off the editorial decisions of Internet service providers. Absent a showing of market power, the Government may not tell Internet service providers how to exercise their editorial discretion about what content to carry or favor any more than the Government can tell Amazon or Politics & Prose what books to promote; or tell The Washington Post or the Drudge Report what columns to carry; or tell ESPN or the NFL Network what games to show; or tell How Appealing or Bench Memos what articles to feature; or tell Twitter or YouTube what videos to post; or tell Facebook or Google what content to favor.”
Again, that’s not just wrong it’s aggressively incorrect. Something his fellow judges again made clear in their majority ruling:
“[N]o Supreme Court decision supports the counterintuitive notion that the First Amendment entitles an ISP to engage in the kind of conduct barred by the net neutrality rule?i.e., to hold itself out to potential customers as offering them an unfiltered pathway to any web content of their own choosing, but then, once they have subscribed, to turn around and limit their access to certain web content based on the ISP’s own commercial preferences.”
To be more explicit about the problems here, you can tell that Kavanaugh went wrong in the way he constantly refers to Verizon blocking services as “editorial” decisions, as if Verizon curates what internet you can and cannot see. That completely misunderstands the nature of an end-to-end internet, where access providers, such as Verizon, are merely connecting you to the wider network, not “editorializing” over what you get access to. All of the comparisons that Kavanaugh trots out — Amazon, book stores, YouTube, etc. — are entirely different. Those are all platforms in which those sites are literally hosting the content and thus have the right to allow or refuse how it is used. Verzion, on the other hand, is merely connecting people and not making “editorial” choices.
Kavanaugh’s dissent was cribbed nearly word for word from large ISP lobbying efforts, including his proclamation that the rules weren’t necessary thanks to “vibrant competition? in the broadband sector. And while few will focus much on net neutrality as the debate over Kavanaugh’s nomination heats up, his willingness to mindlessly parrot false claims from one of the most-disliked and anti-competitive industries in America does speak well to overall character and likely future voting patterns.
And should Kavanaugh be officially confirmed, that obviously spells some serious trouble for all future efforts to restore net neutrality.
The Trump FCC’s ham-fisted repeal is facing some legitimate looming legal challenges from small companies, consumer groups, and numerous state attorneys general, and given the FCC’s bizarre and unethical behavior during the repeal, the legal assault has a good chance of succeeding. Granted that also means it has a non-insubstantial chance of this or other net neutrality fights landing before the Supreme Court, where it should be pretty obvious that Kavanaugh is likely to side with giant ISPs, the overwhelming, bipartisan public support for the rules be damned.