Verizon’s court challenge to the Federal Communications Commission’s network-neutrality rules has sparked a battle between two views of the First Amendment.
As part of its lawsuit over the rules, which govern how Internet companies can restrict or block content on their networks, Verizon says that the regulations infringe on its First Amendment rights.
“Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others,” Verizon and MetroPCS attorneys argued in a joint brief filed with the U.S. Court of Appeals for the District of Columbia Circuit.
But that assertion was disputed on Wednesday at a Capitol Hill briefing organized by top Democrats on the House Energy and Commerce Committee. Calling Verizon’s argument “troubling,” Energy and Commerce ranking member Henry Waxman, D-Calif., and Democratic Reps. Edward Markey of Massachusetts, Anna Eshoo and Doris Matsui of California, and Mike Doyle of Pennsylvania organized the meeting to brief staffers on the “startling constitutional arguments being made in the D.C. Circuit and how the role of Congress in enacting communications policy could be radically undermined.”
The lawmakers invited former FCC Chairman Reed Hundt and David Goldberg, a lawyer who worked with Hundt and other former officials, to draft an amicus brief opposing Verizon’s arguments. The pair contended that it’s Verizon’s position, not the government’s rules, that could undermine free speech.
“This idea that the Internet can be closed, or blocked, or managed by private parties is the exact opposite of America’s foreign policy,” Hundt said, pointing to the Obama administration's Internet freedom advocacy. “The Internet is a common medium.”
Hundt dismissed Verizon’s view that it is somehow similar to a newspaper. “Verizon is like paper, not a newspaper,” he said.
Verizon spokesman Ed McFadden told National Journal that the telecom giant has long been a champion of Internet freedom.
“Verizon and other broadband providers have consistently said that they will make all lawful content available to their customers and that customers should be able to go where they want and do what they want on the Internet,” he said in an e-mail. “As well, broadband providers seek to retain the flexibility to offer differentiated content and services of their own, thus providing additional choices to consumers.”
But Hundt and Goldberg said that telecom networks have a long history of dealing with public-interest expectations, and they said courts have ruled that even privately owned companies like malls are limited in how they can restrict speech on their property.
“Verizon’s arguments fail as a matter of constitutional principle: that transmission enables someone else’s constitutionally-protected expression does not mean that it is itself speech,” the group wrote in its amicus brief.
Additionally, they argued, if the courts were to accept Verizon’s arguments, “Congress’s historic power to take and authorize measures to preserve openness of communication networks would be unsettled and dramatically narrowed.”
The FCC’s net-neutrality rules took affect a year ago. The court is expected to consider Verizon’s challenge next year.