What Sotomayor Could Mean for Network Neutrality and the First Amendment

[Joanne98]

Senator Al Franken will ask Judge Sotomayor questions this week as a member of the Senate Judiciary Committee and has said he will ask about network neutrality. As the Daily Show once explained, "network neutrality" is a proposed law that would forbid phone and cable companies from interfering with your Internet access. Phone and cable companies have announced a desire to cut special deals with websites, to slow some down, speed some up, and just block others. On wireless platforms, the carriers already limit Internet access, for example not permitting you to use Skype on mobile Internet offerings.

Franken has a brilliant insight here. Most people would wonder what the Supreme Court has to do with network neutrality. There are two main legal issues: (1) can Congress adopt a network neutrality law without the Supreme Court overturning it, and (2) can the Federal Communications Commission adopt a network neutrality law without a specific law passed by congress first?

Judge Sotomayor's history is a blank slate on this, with very few hints.

1. Let's begin with the Congress question, which involves the First Amendment. Here's the question I'd ask: Please tell us about the free speech rights of media, telephone, and cable companies. That is, do their rights trump the rights of citizens and users of media?

The question might surprise you. Scattered court decisions, telco-funded think tank wonks, and the dicta and dissents of some Supreme Court Justices, and some liberal scholars would hold that the First Amendment itself may forbid network neutrality. (For a long rebuttal, see here). The same arguments would invalidate much of President's Obama ambitious and pro-speech Tech Innovation Agenda, which includes media ownership limits, Internet access for all Americans, and benefits for public broadcasting. Essentially, some judges think that the First Amendment belongs to private companies--to media, phone, and cable companies specifically--not to you and me. And if they're right, we can do nothing to reform media or keep the Internet open for freedom of speech, in the real world, for all Americans to use text, video, and voice to communicate freely.

The key thing to know is that the First Amendment is that it's a constitutional limit. That means that judges, not Congress, have the final say in applying it. Usually, Congress can tax cigarettes or declare war. Congress, in theory, represents a majority and majority rule is A-OK. But sometimes a judge must strike down a law because a majority can't take away your fundamental rights, including free speech (or, according to Roe v Wade, a woman's privacy rights). That's the beauty of the First Amendment.

But let's say you're a phone or cable company. You want to stop network neutrality, even though network neutrality is common sense, good for free speech and economic innovation and global competitiveness, and naturally popular.

What to do? Plan A is to continue doing what you do best: you spend hundreds of millions lobbying on network neutrality. You convince lots of your friendly Congressmen who like your money and your lobbyists that network neutrality is either "a solution in search of the problem" ("because we'd never take over the Internet!") or the exact opposite ("because we must take over the Internet, or else we'll loose money and never build out to all Americans!"). Who needs consistency when you have a big PAC?

But you might hit a roadblock, and need a plan B. Because you may fool some of the Congressmen all of the time, but you're not going to convince the public that Comcast or AT&T should control the Internet. Since 2006, millions of Americans, and groups as diverse as the Christian Coalition and Moveon.org, and an army of bloggers and online journalists, have acted together to preserve and extend network neutrality protections (such as extending the baselines in the Free Press-Comcast case). And President Obama is with the public. He has affirmed his support for network neutrality, as an original co-sponsor of the Senate network neutrality bill, in his tech innovation agenda, in his pick of an FCC Chairman, and even at MTV when discussing cyberwarfare. He has said he would take "a backseat to no one" in his support for network neutrality. On top of that, even the Bush FCC took some actions on
network neutrality cases, sanctioning a phone company that was blocking online Voip phone calls and a cable company (Comcast) blocking Internet tools for online TV and software distribution. President Obama can't take a back seat to that.

So you go to the Lobbyist Book for Usual Plan B: lawsuit. You will run to court and say, "This law is invalid." Sure, sure, the majority of Americans supports the law, Congress or the FCC will have enacted it, and Moveon.org and the Christian Coalition will have performed songs in techni-color harmony in Youtube mashups re-tweeted across the globe, but too bad. The law violates a fundamental right and must be struck down. That is, you argue, network neutrality violates the telco's fundamental free speech right. A telco, like any other speaker, can't be forced to change its speech, and the Internet is speech.

http://www.huffingtonpost.com/marvin-ammori/what-sotomayor-could-mean_b_230330.html

[jody]

1. OR “The key thing to know is that the Second Amendment is that it's a constitutional limit.

That means that judges, not Congress, have the final say in applying it. Usually, Congress can tax cigarettes or declare war. Congress, in theory, represents a majority and majority rule is A-OK. But sometimes a judge must strike down a law because a majority can't take away your fundamental rights, including the right to keep and bear arms for self-defense (or, according to Roe v Wade, a woman's privacy rights). That's the beauty of the Second Amendment.”

ON EDIT ADD:
SCOTUS said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “{t}his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .”

The logic SCOTUS used to incorporate the First Amendment under the Fourteenth Amendment and apply the First Amendment to states is exactly the same logic that incorporates the Second Amendment in the Fourteenth Amendment.