Speech Is Important, But Not Everything Important Is Speech: A Close Look At the Cable Industry’s Fi

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The First Amendment and the principles of free expression are fundamental to the proper functioning of our society and they are a bedrock of the law. The fact that this sentiment is well-worn to the point of cliche doesn't make it any less true. Speech and other expressive conduct must be protected, even when it's bad speech, and even when the short-term consequences of allowing it seem bad too--because the consequences of having the government decide what kinds of speech are acceptable and what kinds of speech are not are even worse.

But the importance of free expression has unfortunately provided some telecom companies with rhetorical cover in their attempt to avoid all oversight, and with aid and comfort from some in the judiciary, they've attempted to characterize business activities that are not expressive as "speech" and to enlist the Bill of Rights in the battle against consumer interests.

You don't want to government using control over ink and printing presses or, more relevant today, computers and smartphones to try to limit speech while claiming that any restrictions are not of speech per se but only of the instrumentalities of speech.

Don't get me wrong. The FCC can and does violate the Constitution--the most salient example being its quixotic and illegal attempts to prevent broadcasters from airing content that is, in its eyes, "indecent." This is absurd; to the extent that broadcasters are producing programming they are indeed "speakers" for First Amendment purposes, and given the proliferation of media outlets and the reduced importance of broadcasting in public discourse overall, any justification there may once have been for putting limits on their rights under the First Amendment when it comes to indecency are gone. (This is not entirely the FCC's fault--it has no choice but to follow the law, and Congress requires it to do these things.)

But the example of indecency regulation is an outlier, since most of what the FCC does involves the regulation of the business practices of various companies and not of their expressive activities. The Supreme Court identified this distinction when it wrote,

This Court is of the opinion that, in enacting the 1992 Cable Act, Congress employed its regulatory powers over the economy to impose order upon a market in dysfunction, but a market in a commercial commodity nevertheless; not a market in "speech." The commodity Congress undertook to regulate is the means of delivery of video signals to individual receivers. It is not the information the video signals may be used to impart. That the video signals can only be used to convey a message is of no particular significance. The same is true of printing presses, or broadcast transmitters; loudspeakers, or movie projectors. Yet no one doubts that Congress could regulate a market in those commodities in danger of chaos or capture without being accused of attempting to infringe the First Amendment freedoms of those by whom they will be used to express protected "speech."

The same analysis applies to wireless spectrum, telephone companies, and ISPs as it does to cable companies. There is a difference between regulating a pipe and regulating content, and it's important to keep the difference straight.

For decades this was uncontroversial. When the Bell System had a monopoly over phone calls in the United States AT&T never argued that the common carriage regulations it was subject to infringed its "free speech" rights--the idea that AT&T somehow has a free speech right to discriminate in connecting calls or to favor some kinds of calls over others would rightly have been seen as absurd. Yet in its challenge to the FCC's Open Internet rules Verizon is arguing that it has a First Amendment right to block, degrade, or favor some of its customer's speech, or to interfere with the expression or other activity of Internet services. It might concede that prudentially it will not do so (for now) but the vital thing is it thinks it has a right to.

But these First Amendment arguments of Verizon have been well-covered and there is no need to review them here. Less well-covered has been the creeping First Amendment-ization of cable TV regulation.

A few examples from various arguments put forward by the cable industry will provide a flavor of what this looks like. In the ongoing "Tennis Channel" case in the DC Circuit, Comcast's attorneys said in oral argument:

"Judge Kavanaugh, I make no bones on the proposition that if there is no market power…and there is no other non-speech interest that the Government can regulate, [Comcast is] entitled under the First amendment to like [its] speech better than yours."
"As a matter of hard core constitutional right I am entitled to prefer my own speech over that of another's."

And in its brief, Comcast argued that,

"The [FCC's] remedy interferes further with Comcast's editorial discretion by compelling Comcast, as a penalty for its existing speech, to engage in specific additional speech. It commands Comcast to carry Tennis Channel as broadly as Golf Channel and Versus."

Elsewhere, in its arguments with Bloomberg over channel positioning Comcast has argued that,

The news neighborhood remedy Bloomberg seeks would significantly burden Comcast’s editorial decision-making regarding channel placement….[Comcast's First Amendment] protection extends to [editorial discretion over which stations to include in its channel lineup] and requires considerable deference to Comcast's editorial decisions.

But it's not just Comcast--Time Warner Cable has argued before the Second Circuit that,

The FCC's requirement that MVPDs carry unaffiliated network programming that MVPDs are required to carry under the FCC’s rules violates the First Amendment because it is speech compelled by a government agency and by its nature a blatant 'intrusion into the function of editors.'

The various rules that the cable companies are challenging here may or may not be good policies. (They mostly concern the carriage of carriage and placement of programming on the operator's lineup.) I happen to think they are good but that's not the point. The point is that if they are bad policies they should be dropped for that reason, and not because the Constitution supposedly demands it.

Of course I grant that "intermediate scrutiny" is appropriate for some of these kinds of regulations. This is where courts look at a rule or regulation that comes close to, but doesn't quite touch a Constitional right and give it an extra hard look. Not only has the Supreme Court said that it does (which rather settles the matter) but it makes some sense. Usually "intermediate scrutiny" is given to "content neutral" rules (for example, those that try to regulate the "time, place, and manner" of speech but not its content). In this case, while I don't see an identifiable speech interest on the part of the cable companies (I don't buy the argument that they are "editors" of any kind), these rules relate to the way in which speech can be carried so giving them this slightly heightened level of scrutiny can be appropriate.

As originally formulated in the landmark United States v. O'Brien case in 1968, the test for intermediate scrutiny is as follows:

[E]ven on the assumption that the alleged communicative element ... is sufficient to bring into play the First Amendment ... a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

I have emphasized language which shows that even granting the applicability of this test does not necessary imply that the conduct in question is actually "speech"--this is a cautious test designed to ensure that even conduct that is not expressive, but might be related to expression, gets some protection, even if not as much as actual speech. It makes sense. You don't want to government using control over ink and printing presses or, more relevant today, computers and smartphones to try to limit speech while claiming that any restrictions are not of speech per se but only of the instrumentalities of speech.

But unfortunately something called the "bottleneck" test has been grafted onto intermediate scrutiny, and this new legal standard has the effect of turning intermediate scrutiny into something much closer to its big brother, strict scrutiny. As originally formulated by the Supreme Court in a case known as Turner I, the bottleneck test was actually favorable to public interest regulation of cable television:

When an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber's home. Hence, simply by virtue of its ownership of the essential pathway for cable speech, a cable operator can prevent its subscribers from obtaining access to programming it chooses to exclude. A cable operator, unlike speakers in other media, can thus silence the voice of competing speakers with a mere flick of the switch.

What the Court identified was something like the "terminating access monopolies" that exist in some telecommunications markets--when a user subscribes to a particular service, particularly one that controls physical communications infrastructure, that service has bottleneck control over what that user can see. Thus some oversight might be necessary. It is true that the level of oversight might change based on the amount of competition in the market for pay TV services or other factors. But none of those other factors affect whether the relevant "bottleneck" exists. Unfortunately this is not how later courts have read the bottleneck test. Instead it has transformed into a simple competition analysis, as this example from the DC Circuit shows:

Satellite and fiber optic video providers have entered the market and grown in market share since the Congress passed the 1992 Act, and particularly in recent years. Cable operators, therefore, no longer have the bottleneck power over programming that concerned the Congress in 1992.

While the DC Circuit cites to Turner I it's plain that it misconstrues the bottleneck test and turns it into something else. It's not like the Turner I Court was unaware of competition concerns. The Court there even at one point observed that cable TV had competitors in 1994, writing that "today's cable systems are in direct competition with over-the-air broadcasters." But the DC Circuit has applied its own analysis instead of what the Supreme Court put in place.

Given the unfortunately inflated role of the DC Circuit in federal agency oversight it's not surprising that cable companies would take these sorts of arguments and run with them. If intermediate scrutiny as elucidated by the Supreme Court were the relevant legal test most of these rules would (and have) passed muster. But under the DC Circuit's more demanding version it's unclear. So now we are in a position where a good chunk of the rules (and merger conditions) that the FCC has adopted are threatened in the name of spurious First Amendment arguments, meaning that the various goals those rules are aimed at (giving independent creators access to viewers, preventing abuse by companies of their privileged positions, and so forth) may go unfulfilled.

Free speech is important, but that doesn't mean that everything important is "speech." The First Amendment protects speech and other expression, but not every business activity that involves moving data from one place to another, or the transmission of photons or electrons or electromagentic waves. When cable and telecoms companies use First Amendment arguments to undermine the public interest, they don't just harm the public interest but the very free expression principles they are claiming to defend. If you broaden the First Amendment's scope of protection to the point of meaninglessness, to where it covers nearly every aspect of the digital economy, it will become meaningless, and viewed as just another argument that some companies make to excuse and explain their behavior. Defenders of free expression cannot allow this to happen.

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