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Big Telecom Claims Oversight & Accountability Violates Its First Amendment Rights

from the do-not-pass-go,-do-not-collect-$200 dept

The Ajit Pai FCC’s attacks on net neutrality have received ample attention. Less talked about is the fact that the attack on net neutrality was just one part of a much broader effort to eliminate what was already pretty tepid oversight of one of the least liked and least competitive tech sectors in America.

The Pai FCC’s Orwellian-named “Restoring Internet Freedom” order not only killed net neutrality rules, it dramatically rolled back FCC authority over big ISPs like Comcast, shoveling any remaining authority to an FTC ISP lobbyists know full well lacks the authority or attention span for telecom oversight. In addition to that, the FCC (again at big telecom’s behest) has set about trying to claim states can’t protect consumers either. With neither competition nor state or federal oversight keeping natural monopolies in line, it shouldn’t take a degree in genetics to ferret out the potential pitfalls.

One of the key arguments underpinning most of the telecom sector’s lobbying shenanigans of late involves one central claim: that state or federal efforts to hold giant ISPs accountable somehow violates Comcast and other ISPs’ First Amendment rights. You’ll recall ISPs tried to claim that net neutrality somehow violated ISPs’ free speech rights, despite the fact that as simple conduits they don’t engage in “editorial” decisions, making the argument rather silly.

The courts didn’t agree with broadband providers then, but in his dissenting opinion during those earlier court battles new Supreme Court Justice Brett Kavanaugh did. Susan Crawford over at Wired offers up a solid piece explaining why, with Kavanaugh now positioned in the highest court of the land, ISPs are very eager to start pushing this argument more forcefully in the months and years to come:

“The addition of Justice Brett Kavanaugh to the Supreme Court roster gives the industry a significant boost. In a 2017 DC Circuit dissenting opinion, Justice Kavanaugh made it clear that he supports giving internet access providers “speaker” privileges, saying that “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers.”

She goes on to explain how the perils of embracing this argument opens the door to a future where little to nothing constricts Comcast’s worst impulses:

“Treating the transmission of data as “speech” will make it virtually impossible for the government to say anything at all about internet access. If the government tries to regulate someday, you can be confident that the industry will make a lot of noise in the form of lawsuits focused on cable’s First Amendment rights to carry out its “editorial discretion,” in hopes that Justice Kavanaugh will get a chance to lock in the industry’s status as a member of the press. The “speech” of a handful of giant companies will be privileged over the ability of all Americans?including all other American businesses?to communicate.”

Again, the lower courts so far haven’t much agreed with ISP arguments on this front. The claim was shot down during several court rulings and appeals during the net neutrality fight, and shot down again recently when Charter tried to wiggle out of allegations of racially-motivated treatment of a minority-owned broadcast channel Charter booted from its cable lineup. Charter (aka Spectrum) has also flirted with the argument unsuccessfully in its ongoing battle with New York State over years of poor service and violated merger obligations.

Again, ISPs are simply conduits to information, not acting as editors, making the whole thing a rather stupid argument. But it’s a stupid argument being made in an era when stupidity is decidedly en vogue; and ISPs’ very much hope to use it as a blunt weapon should any of these fights stumble their way to the Supreme Court over the next few years.

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Companies: at&t, comcast, verizon

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Comments on “Big Telecom Claims Oversight & Accountability Violates Its First Amendment Rights”

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Bergman (profile) says:

Re: Re: Re:

This. CDA 230 provides a safe harbor for them, but only if they are not the publisher. If the traffic through their network is their speech, then they are the publisher and they can be sued accordingly.

I’m posting this via Comcast — if my content flowing through Comcast’s network is Comcast’s speech, then my saying something like “For a good time call Jenny at 867-5309” would make Comcast liable for sex trafficking.

Anonymous Anonymous Coward (profile) says:

Companies have free speech rights that override...

…Citizens free speech rights?

I am not so sure that Brett Kavanaugh’s ascension to the Supreme Court is as much a benefit to the concept as those wishing it were so might think. He was in the minority when he dissented at the Circuit Court level, and he is only 1/9th of the Supreme Court. What makes them think that there are 4 more votes on the Supreme Court that would add yet another level of moderation to Citizens free speech rights?

Anonymous Coward says:

Re: Companies have free speech rights that override...

We certainly hope that the other 8 justices would shoot this down regardless of Kavanaugh’s opinion on the matter. Gorsuch has been reported to have put forth some insane opinions – he might wind up following the path of stupidity, though I admit to ignorance regarding his overall body of decisions.

Still, one justice likely to agree with them is one too many.

AC Currant says:

Re: Companies have free speech rights that override...


WHERE are you the dozens of times I show exactly that on Section 230 topics?

Masnick is for corporations CONTROLLING the speech and outlets of "natural" persons. He repeats it often, can’t be mistaken. From last year:

"And, I think it’s fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone."


Masnick is not hedging "lawyers say and I don’t entirely agree", or "that isn’t what I call serving The Public", but as VERY RARE for him STATES FLATLY. By deeming it a fundamental "Right", Masnick STATES that he wants a few corporations to have absolute and arbitrary control of ALL MAJOR outlets for The Public! He claims that YOUR Constitutional First Amendment Right in Public Forums are over-arched by what MERE STATUTE lays out!

Anonymous Coward says:

This is what is wrong with Verizon mergers


and AT&T


They are mixing a entrepreneurial firm and ideas witha monopolist firms and its ideas with the objective of producing a monopolistic – entrepreneurial firm. What they are going to reap is failure just as all the Silicon Valley did when they merged gigantic computer firms with ancient technology forgetting the entrepreneurial side.

Bruce C. says:

Re: In other news.

This is why it’s so important to separate the ISP business from the content creation business under anti-trust law. Apart from the vertical integration that limits consumer access to content from other providers, it blurs the line between the free-speech inherent in content creation and the social need for utility-class networks that are content-neutral.

If the ISPs win this and start (ab)using that power, more states and local governments will vote to fund publicly-owned ISPs. They may win the speech fight, but there’s a limit to how much lobbying disinformation can be made believable when people can’t access their favorite website because the site didn’t pony up the bucks to be carried by the ISP, or the customer didn’t subscribe to the “premium internet access” add-on.

Mason Wheeler (profile) says:

Re: Re: Re:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, … and that to secure these rights [ie. to defend them from those who would infringe upon them] governments are instituted among men.”

In other words, yes, this is literally the whole purpose why governments exist, according to American political philosophy: to protect the rights of the people.

Bamboo Harvester (profile) says:

Re: Re: Re: Re:

Uh… Quoting the Declaration of Independence, which is nothing more than a “FU, George!” letter of intent, doesn’t do much for items pertaining to the Constitution.

The Constitution is a listing of what the Government MUST do, while the Bill of Rights, as a list of Amendments to the Constitution, is a list of what the Government, as constituted within the Constitution, may NOT do.

Anonymous Coward says:

Re: Re: Re:2 Re:

The Constitution is a listing of what the Government MUST do

It’s a listing of what they’re ALLOWED to do. Some of those things, but not all, are requirements.

The Declaration of Independence is a great source to support claims of "why governments exist", useless as it is for settling Constitutional arguments.

That One Guy (profile) says:

All or nothing

If they want to say that they can choose what is and is not allowed on ‘their’ networks, asserting that it’s a first amendment, ‘editorial control’ issue, then I say give it to them.

… Followed by holding them accountable for everything that travels over their network, where so much as a single day’s worth of data would be enough for every single person working in the company to be hit for several life sentences, and fines large enough to bankrupt the company many times over.

It’s either not a first amendment issue, and they aren’t liable for anything that travels through their network, or is is and they are.

Lawrence D’Oliveiro says:

Re: Re: wouldn't be able to operate without rights.

Their staff have rights as human individuals. And they have responsibilities, too; so if they don’t live up to those responsibilities, there are sanctions available (starting with social opprobrium all the way up to fines and jail time) to bring them back in line.

The trouble with giving companies rights, is that there is no way to ensure that they are living up their corresponding responsibilities. Companies are not people, and they shouldn’t have rights like people do.

ECA (profile) says:

Has to be said..

How many articles can we find, on HOW capitalism is a Bitch??

Every corp in the USA/EU/most of the world is based on this concept. Even the Salvation army and Deseret industry..

But IF’ it is controlled and held back it can last along time. And be Fairly run and do good things..

BUT, when the controls are lost, removed, destroyed…WE HAVE SEEN what can happen. And there is worse to come, IF’ those controls are NOT reinstalled, and HELD in place..

Part of Capitalism is to compete…but we have removed this. Why in HELL did we help the banks?? Those at the top would have fallen, and new ones would have come to the top..WITH better ideals on “WHY you dont do certain things”. Why those rules are around.

Over the years,Iv seen Capitalism “EAT UP” other ideals and companies that had better ideas/concepts of HOW things worked… and those bigger companies/corps SPENT TONS of money to get “THEIR WAY, to be the ONLY WAY”.

If you dont understand this, let me say it this way… Computer hardware is behind the times(technically) by about 30 years.. There were innovations and designs that WORKED very well, they were RUN/WORKED by the company IMPROPERLY( the boss grabbed the money and RAN, and didnt develop what he had). Iv seen Programs that worked better them Much of the CURRENT software we NOW have.. That was based on the idea that compatibility was SIMPLE, and not complicated..or proprietary..
Iv seen Any challenger, be Stomped on, Over powered, Bought, sold, or bought and TORN apart..
What I mean by that…is a Anti virus group working hard to do their thing, bought up, destroyed…because the BIG company wanted a BACKDOOR into your computer, that they could HIDE.. They didnt want the smaller company finding and FIXING what they had created.(ever hear of Central point Software)..

Iv watched Major Corps, GIVE AWAY HARDWARE, so that they can Dominate a market, and destroy the competition of 3-4 other smaller hardware designs..(MS and Apple did it)(look for Atari, commodore, and 2-3 other older computer companies)..

There is a thought in my head About Balance in the economy.. When the money EARNED is a fair value…Where there is only 1 Type of Stock from a corp, or Large Corps are NOT ALLOWED on the stock market(they have to use their OWN money to get things done, not sell Stocks to pay for stuff).. Where Wool and Cotton, arent only for underwear.. And PLASTIC clothing, is CHEAP AS DIRT(as it used to be)

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