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.

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Companies: verizon

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Comments on “SCOTUS Nominee Kavanaugh Bought Verizon's Silly Argument That Breaking Net Neutrality Is A 1st Amendment Right”

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Uriel-238 (profile) says:

Re: Re: Re: Electoral College

Go ahead and explain it anyway Anonymous Coward, and then explain how a grievance about the popular majority (which has put a tyrant in place who is putting undesirables into work camps as we speak) is somehow comparable to us brown shirts.

Tell us for what reason our Constitutional Framers included the Electoral College that might apply today. Tell us how well it worked keeping authoritarian tyrants out of the Executive.

Go on! Explain to the whole class, please.

Uriel-238 (profile) says:

Re: Re: Re:2 Gaaah, always preview.

…explain [to us] how a grievance about the popular majority being ignored and rejected thanks to an archaic exception in our constitution that nullifies democratic rule somehow makes us comparable to brown shirts.

Saying we don’t like the rules as they’re exactly written is a legitimate gripe.

We’ve, frankly, been saying it since 2000. And one can infer that the Republicans / Anti-left cannot actually get elected except by a campaign of technicalities and election rigging And that’s before we throw in Putin’s influence.

Anonymous Coward says:

Re: Resist!

I googled #punch_a_conservatist and the only result was this page (and that comment). It seems that Techdirt and its comments gets indexed very quickly.

But I wonder if Google indexes “hidden” comments. Does anyone know if “hiding” a comment makes it invisible to web crawlers?

Anonymous Coward says:


Would an ISP choosing to not route a phone call also be exercising editorial discretion? I mean, it’s not as if a significant amount of voice traffic is currently being offloaded from the PSTN, or anything.

For example, what if the judge’s ISP chooses to think that his stance on allowing ISPs to have editorial control is something they fundamentally disagree with. And let’s go further to say they decide that they want to exercise their editorial control by not allowing him to complete a phone call?

Is it fine now?

ECA (profile) says:

Access to the Library.

You advertise access to a Large library..
You Charge for access..Then you find out that Sections of that Library are closed to all access..Unless you pay more..and Even after you paid once, you have Restricted access to many other sections that are only open at certain times and only certain books..

How old are you?
The old Telephone system really Sucked.
They limited the range to VERY LOCAL, Town to town, no matter how close they were..
They limited DAY calls to business service, and charged extra to Consumers..
Service charges that we could never figure out..Even Some taxes that had Ended, were kept up for over 100 years.(did the gov. get its part, $3 per person Per phone PER MONTH, is allot of money)
The lady that Paid Extra to pay for a Princess phone for 30 years..(it cost $120 at the time)

I really am mystified, how the USA is afraid of the corporations. MOST of them are old Style and Polluting Corps that Sit and take money for little to nothing. They dont improve or advance how they do things, and think that HOW business is done is how they MAKE it. They collect the money and sit on their buts. No improvement, advancement, betterment..
Even after WE ASKED THEM to clean up their OWN pollution..Nada..they paid off GROUPS to shutup and go away insted.
If we had CLOSED the top banks because of Malfeasance and BEING STUPID.. Others would have taken their place..Those that were Hired would of gone to other Banks and business and worked again.

Anonymous Coward says:

But, if they are publishers ...

Verizon, AT&T, Comcast would be claiming responsibility for publishing child pornography, facilitating drug traffickers, etc. I guess that would mean Kavanaugh would vote to shut the ISP’s down? But I don’t expect he would really vote that way.

Perhaps he is a idiot and doesn’t understand the internet, but it seems unlikely. So, he was simply signaling that his decisions can be based on political grounds rather than the law. At least he parroted the ISP lines rather than writing his own creative fiction.

As the Republicans rally behind activist judges, are there any principals left that they hold? Weak on crime, sift on national defense, spending money like a drunken sailor, disavowing family values, and on and on.

Anonymous Coward says:

Maybe Kavanaugh was trying to put the ISPs out of business

It is rather simple actually. The ISPs make decisions on what to present so they “publish” the content to the end user. This negates their CDMA 230 protections as they are no longer a platform but a publisher.

Now when I trace down a pirate download I get the IP and the IP is tied to an ISP (has to be) and since they are the last publisher they are responsible for the illegal download. I imagine since they make rich easy targets everyone will sue them instead of the end user.

bob says:

Re: Re: Maybe Kavanaugh was trying to put the ISPs out of business

Well if he is approved by the Senate then he might be a method to get rid of FOSTA/SESTA, or totally reorganize all Idols because they no longer have CDA230 protections.

It would cause a huge mess and be terrible for the Internet, but you know…silver linings and all that.

Anonymous Coward says:

Re: Maybe Kavanaugh was trying to put the ISPs out of business

This negates their CDMA 230 protections…

What do their “code-division multiple acces (CDMA)”   “protections” have to do with anything?



Look, dude. If you want to discuss 47 USC § 230(c)(2), enacted as part of the Cox-Wyden “Online Family Empowerment” amendment of the Communications Decency Act (CDA), which in turn was part of Telecommunications Act of 1996, amending the Communications Act of 1934… well, we talk about that a fair amount here at Techdirt.

Many people here know what (c)(2) actually says, ’cause they’ve read the statute.

Uriel-238 (profile) says:

Re: Wow, net neutrality is for the ISP protection

Net neutrality passes the responsibility to filter out illegal content to the end user. Without it, then yeah, if the company has the right to choose what content to filter, it also should have the obligation to only pass along clean content.

Rights and responsibilities typically go hand and hand.

stderric (profile) says:

Ken White wrote about Kavanaugh’s First Amendment record today… the post doesn’t really get into any details about his telco opinions, and seems to miss the absurdity of an ISP being a publisher with editorial discretion. It’s a long article, but this seems to be a bit of a glaring omission.

stderric (profile) says:

Re: Re: Re:

No, that section was the one I was talking about, but it really only discusses Kavanaugh’s support for the freedom of a corporation to exercise its free speech rights via editorial discretion:

Put another way, he believes that the First Amendment prohibits the government from telling ISPs and other communications providers that they have to carry competitor’s content

I just didn’t see a mention anywhere about the issue of ISPs being ‘communications providers’ vs ‘content providers’… at least, not in the article. Some of the commenters have, of course, brought up the issue using the analogy of a phone company being given editorial control over our conversations.

Anonymous Coward says:

Re: Re:

It’s funny that Ken White would be the one to write that “Kavanaugh And Free Speech” article on Popehat, because his blogging partner, Marc Randazza, markets himself specifically as a First Amendment specialist, while Ken White does not.

But maybe Popehat follows the “Techdirt Rule” in which the site owner gets first dibs on any major breaking news story in order to set the tone for the contributing writers to follow from then on. (it’s a system that’s worked very well here on Techdirt because it’s been very rare that Mike has ever butted heads with any of the other Techdirt writers on an issue)

Anonymous Coward says:

If there was true competition he would be right

If there were multiple internet providers Verizon would be able to throttle as much as they wanted to. It would be up to the customers to decide whether to stick with Verizon or not. However, there are very few choices I internet providers.

What needs to be done is to separate the physical access from the data, with one company providing the physical plant and others providing the data service. Like it used to be with old dial up service. You didn’t like AOL coup could go with EarthLink, or any other Dial-up ISP.

OA (profile) says:

Rent Seeking: The Next Generation

It seems these ISPs want to "wet their beak" on all the profitable benefits that this age of the Internet is providing and will provide. It’s not enough to profit by providing, to the best of their ability, convenient and effective means to join the world’s interconnected community. No. They got to get a "piece of the action". Instead of contributing society (and being rewarded for it), they would siphon from society’s intended output, while distorting and stifling that output. Afterall, "you can be anything you want in this world".

Mike Masnick (profile) says:

Re: BS

The First Amendment is for people–period, not corporations. Any legal precedent saying otherwise is complete BS.

We just recently discussed why this would be an all out disaster. One of the most important First Amendment victories in the last century — NYTimes v. Sullivan — would have been impossible under your standard.

It’s a bad idea that would massively harm free speech.

That One Guy (profile) says:

All or none

If they want to claim that their ‘speech’ involves the content of the internet, such that they have a first amendment right to choose which to allow and which to block then great, they are now liable for it. All of it.

A few (dozen/hundred/thousand) lawsuits for hosting/transmitting child porn, copyright infringement in the billions, aiding and abetting who knows how many crimes involving drugs, massive amounts of defamation and any number of other crimes should be more than enough to drive them into the ground, replaced by smart companies running dumb pipes who realize that that is an argument they do not want to make.

Anonymous Coward says:

Re: All or none

… they are now liable for it. All of it.

Suppose that back before the ‘net became all popular and widespread, suppose late ’80s or very early ’90s, sometime before the world-wide web really took off… suppose that a politically ambitious DA had made that argument?

Think about before Reno v ACLU. That actual case began in 1996, and was decided by the Supreme Court in 1997. Think before then.

Remember Uunet? Imagine maybe a case called Alabama v Uunet.

Back then, could Uunet have interposed a first amendment defense against Alabama’s claim that Uunet was liable for all the content on their geeky, hyper-technical “computer network”? Liable for all of it?

Anonymous Coward says:

Re: Re: All or none

Think about before Reno v ACLU. That actual case began in 1996, and was decided by the Supreme Court in 1997.

The actual case, Cubby v Compuserve was 1991. Imagine the hypothetical Alabama v Uunet occurred a bit before then. Of course, Uunet wasn’t founded until 1987. So within that 1987 – 91 window: Alabama v Uunet.

Does Uunet have a first amendment defense?


(Incidentally, if you recall, the Steve Jackson Games raid was 1990.)

Anonymous Coward says:

"editorial decisions of Internet service providers"

I am stunned that anyone would even remotely concieve of the NN debate as being an “editorial decision”.

Worst of all, that a judge would concede that position, without considering that the ISP could disappear references to the court itself from within their walled gardens. In fact, since you only have the rights that you assert, the court has in this argument given permission to the ISP’s to do exactly that.

The scale of ignorance exceeds even consideration for the courts own self preservation. And considering the egos involved, that is really saying something.

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