Amicus Briefs Counter Verizon’s First Amendment Argument in Verizon v. FCC

Last week Public Knowledge and the Open Internet Coalition submitted an “intervenor’s brief” in support of the open internet rules in Verizon v. FCC. Along with our brief, other allied parties including Columbia Law Professor Tim Wu, the Center for Democracy and Technology, and several former FCC commissioners offered “friend of the court” briefs, or “amicus briefs,” in favor of the FCC.

Verizon claims it has the First Amendment right to edit, prioritize, or block its customers’ access to the internet. Verizon’s First Amendment argument plays an interesting role in the case, to which each responded in the following three briefs.

Tim Wu’s Amicus Brief

Verizon argues that the FCC’s open internet rules violate Verizon’s First Amendment rights. Tim Wu, Columbia Law professor and former senior advisor to the FTC, believes that by first defining Verizon’s broadband service, he can then show that in fact Verizon lacks any historical precedence for this First Amendment argument.

There is an important legal distinction between a “transmitter” (like a postal service) and a publisher (like a newspaper). Unlike transmitters, publishers choose their content and are liable for this content. For instance, newspapers choose the articles they print and are legally responsible for the words on the page. The transmitter/publisher distinction is significant because publishers are protected under the First Amendment, where transmitters are not.

Wu frames his argument on the definition of Verizon’s broadband service as either a publisher or a transmitter, and whether this service merits the protection of the First Amendment. As a broadband provider, Verizon’s main service involves transferring information, or speech, as the customer directs. Verizon doesn’t choose the content their users navigate to, nor is Verizon legally responsible for what their customers choose to do on those webpages. For these reasons, Wu calls Verizon a transmitter. As transmitters like Verizon do not choose their content, their speech is not protected. Rather, the speech of their users is protected.

Furthermore, Wu traces regulations for transmitters through history, from the telegraph to the telephone, and finds that in centuries of regulation no court has ever found First Amendment rights for transmitters. He concludes that when a law has not been challenged throughout history, there is good reason to believe it is Constitutional. 

CDT’s Amicus Brief

The Center for Democracy and Technology focuses on countering Verizon’s First Amendment rights through Verizon’s own contradictory definitions of its broadband service.

In this case, Verizon claims it has the First Amendment right to edit, prioritize, or block its customers’ access to the internet. Verizon calls this “editorial discretion” over the content its users send and receive. CDT contends that by playing gatekeeper and controlling its customers’ interaction with the internet, Verizon is threatening the fundamentally participatory element of the internet. 

On the other side, however, Verizon has in the past defined its broadband services as a conduit for its users speech. The First Amendment protects this speech by users, while conduits themselves are not protected. Verizon has taken legal advantage of its status as a conduit and benefitted from the fact that it isn’t liable for its users speech.

CDT rightly argues that Verizon cannot have it both ways. Verizon cannot chose to benefit from its non-speaker status and lack of responsibilities as a conduit, while simultaneously claiming a right to editorial discretion under the First Amendment. CDT maintains that Verizon is exclusively a conduit, invalidating its First Amendment argument. 

Former FCC Commissioners' Amicus Brief

Several former FCC Commissioners argue against Verizon’s right to free speech using something called “the Spence test” and Verizon’s own words showing just how severe the outcome of the case could be.

The Spence test, employed by the Supreme Court to determine whether something qualifies for freedom of speech, is a long-used test that protects the sanctity of the First Amendment.  The Spence test asserts that if conduct is “inherently expressive” and has “intent to convey a particularized message” then the First Amendment protects it. The former Commissioners argue that transmitting content through the role of supplying broadband services is not expressive, nor does it convey a message. Therefore, under the Spence test, Verizon fails to qualify for freedom of speech.

In the past, Verizon has lauded the internet as a great equalizer and a medium through which anyone with an internet connection can communicate as they chose. When Verizon then argues for its right to edit customers’ access to the internet, the former Commissioners counter that this type of control could actually incur detrimental blows to Verizon users’ free speech. In fact, the former Commissioners quote Verizon saying that such editorial control would be “the beginning of the end of the Net as we know it.” To the former Commissioners, this shows the gravity of the case decision for Verizon and other broadband suppliers, but more importantly for Verizon’s broadband users.

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