First Amendment & Free Speech

There has been an increasing outcry recently from conservatives that social media is conspiring to silence their voices.  Leading voices including President Donald Trump and Senator Ted Cruz have started calling for legislative or regulatory actions to correct this perceived “bias”. But these calls for fairness miss the importance of allowing such services to develop their own terms and for users to determine what services to use and the benefit that such services have been to conservatives.

Social media is becoming a part of our everyday lives and recent events have only increased our general awareness of this fact. More than half of American adults login to Facebook on a daily basis. As a result, some policymakers have argued that such sites are the new public square. In general, the First Amendment strictly limits what the government can do to limit speakers in public spaces and requires that such limits be applied equally to different points of view. At the same time, private entities are generally allowed to set terms regarding what speech may or may not be allowed on their own platforms.

The argument that modern day websites are the new public square and must maintain a neutral view point was recently rejected in a lawsuit between PraegerU and YouTube. Praeger believed that its conservative viewpoint was being silenced by YouTube decision to place many of its videos in “restricted mode.” In this case, the court found that YouTube was still acting as a private service rather than one filling a typical government role. Other cases have similarly asserted that Internet intermediaries have First Amendment rights to reject or limit ads or content as part of their own rights to speak or not speak. Conservatives have long been proponents of property rights, freedom of association, and free markets. But now, faced with platforms choosing to exercise their rights, rather than defend those values and compete in the market some “conservatives” are arguing for legislation or utilizing litigation to bully the marketplace of ideas into giving them a louder microphone. In fact, part of the purpose behind creating the liability immunity (known as Section 230) for such services was the principle that a variety of platforms would emerge with different standards and new and diverse communities could be created and evolve to serve different audiences.

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Thirteen years ago I penned an essay entitled, “Your Soapbox is My Soapbox!” It was condensed from a 2005 book I had released at the same time called Media Myths. My research and writing during that period and for fifteen years prior to that was focused on the dangers associated with calls by radical Left-leaning media scholars and policy activists for a veritable regulatory revolution in the way information and communication technology (ICT) platforms were operated. They pushed this revolution using noble-sounding rhetoric like “fairness in coverage,” “right of reply,” “integrity of public debate,” “preserving the public square,” and so on. Their advocacy efforts were also accompanied by calls for a host of new regulatory controls including a “Bill of Media Rights” to grant the public a litany of new affirmative rights over media and communications providers and platforms.

But no matter how much the so-called “media access” movement sought to sugarcoat their prescriptions, in the end, what those Left-leaning scholars and advocates were calling for was sweeping state control of media and communications technologies and platforms. In essence, they wanted to socialize private soapboxes and turn them into handmaidens of the state.

Here’s the way I began my old “soapbox” essay:

Imagine you built a platform in your backyard for the purpose of informing or entertaining your friends of neighbors. Now further imagine that you are actually fairly good at what you do and manage to attract and retain a large audience. Then one day, a few hecklers come to hear you speak on your platform. They shout about how it’s unfair that you have attracted so many people to hear you speak on your soapbox and they demand access to your platform for a certain amount of time each day. They rationalize this by arguing that it is THEIR rights as listeners that are really important, not YOUR rights as a speaker or the owner of the soapbox.

That sort of scenario could never happen in America, right? Sadly, it’s been the way media law has operated for several decades in this country. This twisted “media access” philosophy has been employed by federal lawmakers and numerous special interest groups to justify extensive and massively unjust regime of media regulation and speech redistributionism. And it’s still at work today.

That was 2005. What’s amazing today is that this same twisted attitude is still on display, but it is conservatives who are now the ring-leaders of the push to socialize soapboxes! Continue reading →

A few states have passed Internet regulations because the Trump FCC, citing a 20 year US policy of leaving the Internet “unfettered by Federal or State regulation,” decided to reverse the Obama FCC’s 2015 decision to regulate the Internet with telephone laws.

Those state laws regulating Internet traffic management practices–which supporters call “net neutrality”–are unlikely to survive lawsuits because the Internet and Internet services are clearly interstate communications and FCC authority dominates. (The California bill also likely violates federal law concerning E-Rate-funded Internet access.) 

However, litigation can take years. In the meantime ISP operators will find they face fewer regulatory headaches if they do exactly what net neutrality supporters believe the laws prohibit: block Internet content. Net neutrality laws in the US don’t apply to ISPs that “edit the Internet.”

The problem for net neutrality supporters is that Internet service providers, like cable TV providers, are protected by the First Amendment. In fact, Internet regulations with a nexus to content are subject to “strict scrutiny,” which typically means regulations are struck down. Even leading net neutrality proponents, like the ACLU and EFF, endorse the view that ISP curation is expressive activity protected by First Amendment.

As I’ve pointed out, these First Amendment concerns were raised during the 2016 litigation and compelled the Obama FCC to clarify that its 2015 “net neutrality” Order allows ISPs to block content. As a pro-net neutrality journalist recently wrote in TechCrunch about the 2015 rules, 

[A] tiny ISP in Texas called Alamo . . . wanted to offer a “family-friendly” edited subset of the internet to its customers.

Funnily enough, this is permitted! And by publicly stating that it has no intention of providing access to “substantially all Internet endpoints,” Alamo would exempt itself from the net neutrality rules! Yes, you read that correctly — an ISP can opt out of the rules by changing its business model. They are . . . essentially voluntary.

The author wrote this to ridicule Judge Kavanaugh, but the joke is clearly not on Kavanuagh.

In fact, under the 2015 Order, filtered Internet service was less regulated than conventional Internet service. Note that the rules were “essentially voluntary”–ISPs could opt out of regulation by filtering content. The perverse incentive of this regulatory asymmetry, whereby the FCC would regulate conventional broadband heavily but not regulate filtered Internet at all, was cited by the Trump FCC as a reason to eliminate the 2015 rules. 

State net neutrality laws basically copy and paste from the 2015 FCC regulations and will have the same problem: Any ISP that forthrightly blocks content it doesn’t wish to transmit–like adult content–and edits the Internet is unregulated.

This looks bad for net neutrality proponents leading the charge, so they often respond that the Internet regulations cover the “functional equivalent” of conventional (heavily regulated) Internet access. Therefore, the story goes, regulators can stop an ISP from filtering because an edited Internet is the functional equivalent of an unedited Internet.

Curiously, the Obama FCC didn’t make this argument in court. The reason the Obama FCC didn’t endorse this “functional equivalent” response is obvious. Let’s play this out: An ISP markets and offers a discounted “clean Internet” package because it knows that many consumers would appreciate it. To bring the ISP back into the regulated category, regulators sue, drag the ISP operators into court, and tell judges that state law compels the operator to transmit adult content.

This argument would receive a chilly reception in court. More likely is that state regulators, in order to preserve some authority to regulate the Internet, will simply concede that filtered Internet drops out of regulation, like the Obama FCC did.

As one telecom scholar wrote in a Harvard Law publication years ago, “net neutrality” is dead in the US unless there’s a legal revolution in the courts. Section 230 of the Telecom Act encourages ISPs to filter content and the First Amendment protects ISP curation of the Internet. State law can’t change that. The open Internet has been a net positive for society. However, state net neutrality laws may have the unintended effect of encouraging ISPs to filter. This is not news if you follow the debate closely, but rank-and-file net neutrality advocates have no idea. The top fear of leading net neutrality advocates is not ISP filtering, it’s the prospect that the Internet–the most powerful media distributor in history–will escape the regulatory state.

Is code speech? That is one of the timeless questions that comes up again and again in the field of Internet law and policy. Many books and countless papers and essays have touched on this topic. Personally, I’ve always thought it was a bit silly that this is even a serious question. After all, if code isn’t speech, what the heck is it?

We humans express ourselves in many creative ways. We speak and write. We sing and dance. We paint and sculpt. And now we code. All these things are forms of human expression. Under American First Amendment jurisprudence, expression is basically synonymous with speech. We very tightly limit restrictions on speech and expression because it is a matter of personal autonomy and also because we believe that there is a profound danger of the proverbial slippery slope kicking in once we allow government officials to start censoring what they regard as offensive speech or dangerous expression.

Thus, we when creative people come up with creative thoughts and use computers and software to express them in code, that is speech. It is fundamentally no different than using a pencil and pad of paper to write a manifesto, or using a guitar and microphone to sing a protest song. The authorities might not like the resulting manifesto or protest song–in fact, they might feel quite threatened by it–but that fact also makes it clear why, in both cases, that expression is speech and that speech is worth defending. Moreover, the methods or mediums of speech production and dissemination–pencils, paper, guitars, microphones, etc.–are what Ithiel de Sola Pool referred to as “Technologies of Freedom.” They help people extend their voices and to communicate with the world, while also learning more about it.

Which brings us to the 3D printers and the code behind the open source blueprints that many people share to fabricate things with 3D printers.  Continue reading →

For decades, cities, the FCC, and Congress have mandated that cable TV operators carry certain types of TV programming, including public access channels, local broadcast channels, local public television, and children’s programming. These carriage mandates have generated several First Amendment lawsuits but cable operators have generally lost. Cable operators have junior varsity First Amendment rights and the content they distribute is more regulated than, say, newspapers, Internet service providers, search engines, and Netflix. I submitted public interest comments (with JP Mohler) to the FCC this week explaining why cable operators would likely win today if they litigated these cable carriage regulations.

Regulations requiring newspapers, book publishers, or Internet service providers to carry the government’s preferred types of content are subject to strict scrutiny, which means such regulations typically don’t survive. However, cable is different, the Supreme Court held in the 1994 Turner case. The Supreme Court said regulations about what cable operators must carry are subject to intermediate–not strict–scrutiny because cable operators (in 1994) possessed about 95% of the subscription TV market and nearly every household had a single choice for subscription TV–their local cable monopoly. In the words of the Supreme Court, cable’s content regulations “are justified by the special characteristics of the cable medium: the bottleneck monopoly power exercised by cable operators.”

As a result, the FCC enforces “leased access” regulations that require cable operators to leave blank certain TV channels and give non-affiliated programmers a chance to use that channel capacity and gain viewership. Cable operators in the 1990s sued the FCC for enforcing these regulations in a 1996 case called Time Warner v. FCC. The DC Circuit relied on the 1994 Turner case and upheld the leased access rules.

Recently, however, the FCC asked whether First Amendment interests or TV competition requires giving these regulations another look. In our public interest comment, JP and I say that these rules have outlived their usefulness and cable operators would likely win a First Amendment lawsuit against the FCC today.

Two things have changed. First, cable operators have lost their “bottleneck monopoly power” that justified, in the eyes of the Supreme Court in 1994, giving cable operators weakened First Amendment protection.

Unlike in the 1990s, cable operators face significant competition in most local markets from satellite and telco TV providers. Over 99 percent of US households have at least three pay-TV options, and cable has lost over 15 million subscriber households since 2002. In 1997, when Turner II was decided, cable had over 90 percent of the pay-TV market. Cable operators’ market share has shrunk nearly every year since, and in 2015 cable had around 54 percent market share.

This competitive marketplace has stimulated massive investment and choice in TV programming. The typical household has access to far more channels than in the past. Independent researchers found that a typical US household in 1999 received about 50 TV channels. By 2014, the typical household received over 200 TV channels. In 2018, there will be an estimated 520 scripted TV series available, which is up nearly 50 percent from just five years ago.

This emergence of TV competition and its beneficial effects in programming and consumer choice undermines the justification for upholding cable content regulations like leased access.

Second, courts are more likely to view the Supreme Court’s Denver decision about leased access regulations in a new light.  In Denver, the Supreme Court divided into concurrences as to the proper First Amendment category of cable operators, and whether intermediate or strict scrutiny should apply to the leased access laws at issue. The “Marks test” is the test lower courts use for determining the holding of a Supreme Court decision where there is no majority supporting the rationale of any opinion. Viewed through the lens of the prevailing Marks test, cable operators are entitled to “bookstore owner” status for First Amendment purposes:

Given that four justices in Denver concur that one of the potential bases for deciding cable’s First Amendment status is the classification of cable operators as bookstores and three justices concur that this classification is the definitive justification for the judgment, the narrowest grounds for resolving the issue is simply this latter justification. Under the prevailing Marks test, then, lower courts will apply strict scrutiny to the leased access rules in light of the Denver decision.

For these reasons, and the need to conserve agency resources for more pressing matters, like rural broadband deployment and spectrum auctions, we encourage the FCC to discontinue these regulations.

You can read our public interest comment about the leased access regulations at the Mercatus Center website.

Leased Access Mandates Infringe on the First Amendment Rights of Cable Operators, and the FCC Should Decline to Enforce the Regulations

There are a growing number of voices raising concerns about privacy rights and data security in the wake of news of data breaches and potential influence. The European Union (EU) recently adopted the heavily restrictive General Data Privacy Rule (GDPR) that favors individual privacy over innovation or the right to speak. While there has been some discussion of potential federal legislation related to data privacy, none of these attempts has truly gained traction beyond existing special protections for vulnerable users (like children) or specific information (like that of healthcare and finances). Some states, notably including California, are attempting to solve this perceived problem of data privacy on their own, but often are creating bigger problems and passing potentially unconstitutional and often poorly drafted solutions.

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On March 19th, I had the chance to debate Franklin Foer at a Patrick Henry College event focused on the question, “Is Big Tech Big Brother?” It was billed as a debate over the role of technology in American society and whether government should be regulating media and technology platforms more generally.  [The full event video is here.] Foer is the author of the new book, World Without Mind: The Existential Threat of Big Tech, in which he advocates a fairly expansive regulatory regime for modern information technology platforms. He is open to building on regulatory ideas from the past, including broadcast-esque licensing regimes, “Fairness Doctrine”-like mandates for digital intermediaries, “fiduciary” responsibilities, beefed-up antitrust intervention, and other types of controls. In a review of the book for Reason, and then again during the debate at Patrick Henry University, I offered some reflections on what we can learn from history about how well ideas like those worked out in practice.

My closing statement of the debate, which lasted just a little over three minutes, offers a concise summation of what that history teaches us and why it would be so dangerous to repeat the mistakes of the past by wandering down that disastrous path again. That 3-minute clip is posted below. (The audience was polled before and after the event and asked the same question each time: “Do large tech companies wield too much power in our economy, media and personal lives and if so, should government(s) intervene?” Apparently at the beginning, the poll was roughly Yes – 70% and No – 30%, but after the debated ended it has reversed, with only 30% in favor of intervention and 70% against. Glad to turn around some minds on this one!)

via ytCropper

Internet regulation advocates lost their fight at the FCC, which voted in December 2017 to rescind the 2015 Open Internet Order. Regulation advocates have now taken their “net neutrality” regulations to the states.

Some state officials–via procurement contracts, executive order, or legislation–are attempting to monitor and regulate traffic management techniques and Internet service provider business models in the name of net neutrality. No one, apparently, told these officials that government-mandated net neutrality principles are dead in the US.

As the litigation over the 2015 rules showed, our national laissez faire policy towards the Internet and our First Amendment guts any attempt to enforce net neutrality. Recall that the 1996 amendments to the Communications Act announce a clear national policy about the Internet: Continue reading →

Broadcast license renewal challenges have troubled libertarians and free speech advocates for decades. Despite our efforts (and our law journal articles on the abuse of the licensing process), license challenges are legal. In fact, political parties, prior FCCs, and activist groups have encouraged license challenges based on TV content to ensure broadcasters are operating in “the public interest.” Further, courts have compelled and will compel a reluctant FCC to investigate “news distortion” and other violations of FCC broadcast rules. It’s a troubling state of affairs that has been pushed back into relevancy because FCC license challenges are in the news.

In recent years the FCC, whether led by Democrats or Republicans, has preferred to avoid tricky questions surrounding license renewals. Chairman Pai, like most recent FCC chairs, has been an outspoken defender of First Amendment protections and norms. He opposed, for instance, the Obama FCC’s attempt to survey broadcast newsrooms about their coverage. He also penned an op-ed bringing attention to the fact that federal NSF funding was being used by left-leaning researchers to monitor and combat “misinformation and propaganda” on social media.

The silence of the Republican commissioners today about license renewals is likely primarily because they have higher priorities (like broadband deployment and freeing up spectrum) than intervening in the competitive media marketplace. But second, and less understood, is because whether to investigate a news station isn’t really up to them. Courts can overrule them and compel an investigation.

Political actors have used FCC licensing procedures for decades to silence political opponents and unfavorable media. For reasons I won’t explore here, TV and radio broadcasters have diminished First Amendment rights and the public is permitted to challenge their licenses at renewal time.

So, progressive “citizens groups” even in recent years have challenged license renewals for broadcasters for “one-sided programming.” Unfortunately, it works. For instance, in 2004 the promises of multi-year renewal challenges from outside groups and the risk of payback from a Democrat FCC forced broadcast stations to trim a documentary critical of John Kerry from 40 minutes to 4 minutes. And, unlike their cable counterparts, broadcasters censor nude scenes in TV and movies because even a Janet Jackson Superbowl scenario can lead to expensive license challenges.

These troubling licensing procedures and pressure points were largely unknown to most people, but, on October 11, President Trump tweeted:

“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”

So why hasn’t the FCC said they won’t investigate NBC and other broadcast station owners? It may be because courts can compel the FCC to investigate “news distortion.”

This is exactly what happened to the Clinton FCC. As Melody Calkins and I wrote in August about the FCC’s news distortion rule:

Though uncodified and not strictly enforced, the rule was reiterated in the FCC’s 2008 broadcast guidelines. The outline of the rule was laid out in the 1998 case Serafyn v. CBS, involving a complaint by a Ukrainian-American who alleged that the “60 Minutes” news program had unfairly edited interviews to portray Ukrainians as backwards and anti-Semitic. The FCC dismissed the complaint but DC Circuit Court reversed that dismissal and required FCC intervention. (CBS settled and the complaint was dropped before the FCC could intervene.)

The commissioners might personally wish broadcasters had full First Amendment protections and want to dismiss all challenges but current law permits and encourages license challenges. The commission can be compelled to act because of the sins of omission of prior FCCs: deciding to retain the news distortion rule and other antiquated “public interest” regulations for broadcasters. The existence of these old media rules mean the FCC’s hands are tied.

By Brent Skorup and Melody Calkins

Recently, the FCC sought comments for its Media Modernization Initiative in its effort to “eliminate or modify [media] regulations that are outdated, unnecessary, or unduly burdensome.” The regulatory thicket for TV distribution has long encumbered broadcast and cable providers. These rules encourage large, homogeneous cable TV bundles and burden cable and satellite operators with high compliance costs. (See the complex web of TV regulations at the Media Metrics website.)

One reason “skinny bundles” from online video providers and cable operators are attracting consumers is that online video circumvents the FCC’s Rube Goldberg-like system altogether. The FCC should end its 50-year experiment with TV regulation, which, among other things, has raised the cost of TV and degraded the First Amendment rights of media outlets.

The proposal to eliminate legacy media rules garnered a considerable amount of support from a wide range of commenters. In our filed reply comments, we identify four regulatory rules ripe for removal:

  • News distortion. This uncodified, under-the-radar rule allows the commission to revoke a broadcasters’ license if the FCC finds that a broadcaster deliberately engages in “news distortion, staging, or slanting.” The rule traces back to the FCC’s longstanding position that it can revoke licenses from broadcast stations if programming is not “in the public interest.”

    Though uncodified and not strictly enforced, the rule was reiterated in the FCC’s 2008 broadcast guidelines. The outline of the rule was laid out in the 1998 case Serafyn v. CBS, involving a complaint by a Ukrainian-American who alleged that the “60 Minutes” news program had unfairly edited interviews to portray Ukrainians as backwards and anti-Semitic. The FCC dismissed the complaint but DC Circuit Court reversed that dismissal and required FCC intervention. (CBS settled and the complaint was dropped before the FCC could intervene.)

    “Slanted” and distorted news can be found in (unregulated) cable news, newspapers, Twitter, and YouTube. The news distortion rule should be repealed and broadcasters should have regulatory parity (and their full First Amendment rights) restored.
  • Must-carry. The rule requires cable operators to distribute the programming of local broadcast stations at broadcasters’ request. (Stations carrying relatively low-value broadcast networks seek carriage via must-carry. Stations carrying popular networks like CBS and NBC can negotiate payment from cable operators via “retransmission consent” agreements.) Must-carry was narrowly sustained by the Supreme Court in 1994 against a First Amendment challenge, on the grounds that cable operators had monopoly power in the pay-TV market. Since then, however, cable’s market share shrank from 95% to 53%. Broadcast stations have far more options for distribution, including satellite TV, telco TV, and online distribution and it’s unlikely the rules would survive a First Amendment challenge today.
  • Network nonduplication and syndicated exclusivity. These rules limit how and when broadcast programming can be distributed and allow the FCC to intervene if a cable operator breaches a contract with a broadcast station. But the (exempted) distribution of hundreds of non-broadcast channels (e.g., CNN, MTV, ESPN) show that programmers and distributors are fully capable of forming private negotiations without FCC oversight. These rules simply make licensing negotiations more difficult and invite FCC intervention.

Finally, we identify retransmission consent regulations and compulsory licenses for repeal. Because “retrans” interacts with copyright matters outside of the FCC’s jurisdiction, we encourage the FCC work with the Copyright Office in advising Congress to repeal these statutes. Cable operators dislike the retrans framework and broadcasters dislike being compelled to license programming at regulated rates. These interventions simply aren’t needed (hundreds of cable and online-only TV channels operate outside of this framework) and neither the FCC nor the Copyright Office particularly likes being the referees in these fights. The FCC should break the stalemate and approach the Copyright Office about advocating for direct licensing of broadcast TV content.