The D.C. Circuit’s decision in U.S. Telecom Assn. v. FCC came down yesterday. To the delight of net neutrality fans and dismay of many big ISPs, the court held 2-1 that the FCC’s reclassification of broadband under Title II was permissible as a matter of statutory, administrative, and constitutional law. I’m still digesting the first two aspects – the decision and dissent weigh in just under 200 pages – but want to comment on the third (which takes up only seven pages, starting at p.108). The court rejects a First Amendment challenge to net neutrality regulation. I think the outcome is right and the reasoning is both rather shallow and wrong.
The J.D. McGregor problem
First, the majority writes rather breezily that since ISPs are now common carriers, there’s no First Amendment problem, since common carriers transmit the speech of others rather than engaging in speech themselves. That plainly begs the question. The ISPs’ claim is that their constitutional free speech rights override the FCC’s statutory ability to force them to carry others’ speech, particularly since the FCC long insisted that broadband providers were not, in fact, common carriers. The court notes that end users expect to be able to access all content from their ISPs, without owning up to the fact that it’s the FCC’s decade-long efforts to enforce open access rules that drive those expectations. It reminds me of a great exchange from the classic “The Simpsons” episode, “Duffless“:
[Lisa is in a pet store, looking to purchase a hamster to run through a maze for a school project.]
Lisa Simpson: I want the most intelligent hamster you’ve got.
[retrieves a hamster at random]
Clerk: Uh, this little guy writes mysteries under the name of J. D. McGregor.
Lisa Simpson: How can a hamster write mysteries?
Clerk: Well, he gets the ending first, then he writes backward.
Lisa Simpson: Aw, c’mon.
Clerk: Look, kid, just take him before his mother eats him, all right?
The D.C. Circuit and J.D. McGregor have something in common here: it’s a lot easier to start with the result and then figure out why it should happen.
Next, the court tries the scarcity route, famous from the days of Red Lion and Tornillo. Newspapers and television stations face inevitable scarcity, the D.C. Circuit says, and must engage in editorial decisionmaking, while ISPs have an abundance of bandwidth, and thus cannot. That’s a framing problem: at certain capacities, ISPs very much have scarcity problems, which is why they’re co-locating Netflix equipment in their data centers. Ah, the court writes, but there’s no need under scarcity for an ISP to determine which e-mails or Web pages go first; first-in, first-out is just fine. This also elides the question, in part by ignoring the “reasonable network management” loophole in net neutrality. When the network is congested, should e-mail or video traffic receive priority? If the answer is “neither,” why? E-mail has much more tolerance for delays (latency) than video does. FIFO is arbitrary, not a law of nature.
Ah, but that’s where the court goes next with its reasoning: papers and cable TV “naturally occasion the exercise of editorial discretion.” When a lawyer tells you that an outcome is “natural,” you are being spun.
Finally, the court writes, there’s a statutory save: if an ISP decides to “offer access only to a
limited segment of websites specifically catered to certain content” – to become a modern walled garden like AOL – then it falls outside the FCC’s Order, since it will no longer be a “mass-market retail service.” But this leaves at least two questions. What if I start Bambauer’s Broadband Provider and decide that I will only allow access to one streaming video Web site, to be decided based upon which site cuts me the largest check? More seriously, what if an ISP that is vertically integrated with a movie studio decides that it will only stream movies from that studio’s service / Web site, but all other categories and sources of content are completely available? In other words, what do you have to do as a broadband provider to fall outside the FCC’s definition? It sounds like that ISP has to exercise the Goldilocks level of editorial discretion:
|Internet content available||Net neutrality violation?||Why?|
|85% (no YouTube)||Yes||Blocking lawful sites|
|40% (no porn)||Probably not||Curating – offers subset of Web|
|5% kids.us sites only)||Probably not, but irrelevant||Curating, but not commercially viable|
Too little editing, and no First Amendment protection; too much, and you go out of business.
We like money
So, given the snark above, why don’t I think that the ISPs have a viable First Amendment claim? After all, they’re carrying speech (like a bookstore or TV station), and they’d like to make their own decisions about what speech to transmit. I’d be much more sympathetic if the plaintiff was a family-friendly ISP that blocked porn or gambling or heresy or the like. That shows an expressive choice in its editorial decisions, like a kid-friendly bookstore in picking only G-rated inventory. By contrast, the only message conveyed by the actual plaintiffs’ desired blocking / prioritization is “Give us money.” When a bookstore refuses to carry “Lolita” because of its content, it’s engaged in speech; when it just charges more for it because you’ll pay, it’s not.
Put differently, in the table above, the 85% carrier would likely transmit YouTube videos if Google backed a dump truck full of cash up to their headquarters. The 40% carrier probably wouldn’t transmit porn at any price, because the decision is a normative one. To me, this invokes the Spence v. Washington / Texas v. Johnson line of cases that try to draw the line between conduct and speech: it depends on whether there’s an intent to communicate a particular message, and whether it’s likely that the audience understands it. This requires some tough decisions by agencies and courts – what if Bambauer’s Broadband Provider refuses to stream only Denver Broncos games, on the theory that Peyton Manning is a cheater? – but that’s much preferable to drawing artificial distinctions between media or pretending the conclusion is obvious. Sometimes the Net is a dump truck, with everything riding jumbled together, and sometimes it’s an Uber, where the driver picks the rider. For First Amendment purposes, the difference matters.