Marvin Ammori

Cablevision asked the Supreme Court to overrule the Turner Broadcasting case and to declare the broadcast must carry rules unconstitutional. I wrote about Turner in my last post, about Dean Elena Kagan and free speech. If the Supreme Court overruled Turner that would have been a disaster for media policy. I am really happy the Court will not take the case. A relief, and just good news.

Looking at Elena Kagan’s scholarship, I doubt she agrees with Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights. Since this would surprise some people, I unpack it here in some length (for a blog post).

Supreme Court watchers are expecting big news on Monday.  If Politico is to believed, the President will announce his nominee to replace Justice Stevens, and that nominee will be Elena Kagan.

Kagan’s critics (led perhaps by Glenn Greenwald) and defenders have sparred over executive privilege and some hiring decisions at Harvard and her opposition of Roe v. Wade.

I am still undecided on Kagan (and am sympathetic to some of her defenders’ arguments), but want to explore whether Kagan’s record suggests she opposes or supports Citizens United and other cases that she (and I) sometime discuss together with campaign finance cases–cases involving about cable and phone corporations’ “speech” rights. Considering the President’s opposition to Citizens United (and the public’s), this issue is important.

We can expect Kagan to be questioned about Citizens United.  And, during confirmation hearings, a Senator asked Justice Sotomayor about precisely question of phone and cable companies’ supposed First Amendment rights to interfere with citizens’ speech choices, and a judge asked the question at the FCC’s recent, major argument involving Internet policy.

For the answer, we can turn to one of Kagan’s law review articles, which sheds some light on how she thinks about these issues.

In that article, she discusses two cases, Austin (later overruled by Citizens United) and Turner (which I’ll explain here).  To understand legal arguments, you have to know the cases discussed, as lawyers think in cases.  If a lawyer says she supports Roe v. Wade and opposes Lochner v New York, you know what she means if you know those cases.  So let me explain the relevant cases here.

Citizens United, Austin, and Corporate Campaign Expenditures

In Citizens United, the Supreme Court famously held that government could not limit campaign expenditures from the general treasuries of corporations in the immediate run-up to an election.  It was a 5-4 decision along the Court’s now usual conservative-liberal split, and overruled another decision (which had upheld them) called Austin (decided 1990).

Barack Obama has criticized Citizens United more than any other Supreme Court decision.  He told Congress (to Alito’s displeasure) that it “reversed a century of law” and would “open the floodgates for special interests.”  Justice Stevens authored Citizens’s principal dissent.  When Stevens retired, Obama said he would nominate someone “who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Kagan, of course, actually argued Citizens United for the Obama administration; but that doesn’t mean that she agreed with her client’s position. It was her job as Solicitor General to represent her client (which Justice Roberts’ confirmation reminded us), which she does in all her arguments, even those less popular. And, in Citizens, Kagan refused to argue the case based on the existing precedent.

The Rule/Exception/No-Distinction Model of Legal Argument

To understand legal scholarship, beyond knowing the key cases, it helps to know one very common method of making arguments relevant to this post.

Essentially, there are three steps.

1. The Rule.  You list a few Supreme Court decisions that you say all follow the same principles, and set out a general “rule.”

2. The Exception.  You list one decision (or two) you say doesn’t follow the rule, and is an exception.

3. No-Distinction.  You then determine there’s no good reason for distinguishing the exception from the rule.  Nothing special justifies the exception.

Conclusion: the exception should be overruled, as it unjustifiably conflicts with the rule.

This general model is very common.

To shoot fish in a barrel, let’s look at Citizens United. Both the majority and the dissent follow this model.  The conservative majority says, “The overwhelming rule among all our decisions is simple: corporations can’t suffer under special speech restrictions.  Austin said the opposite and is a lone exception.  Nothing adequately distinguishes Austin. Let’s overrule.”

The more liberal dissent, of course by retiring Justice Stevens, said, “The majority ignored and misread our case law, and the rule is that government can consider corporations’ nature (they’re artificial, have government benefits, and are potentially corrupting) when restricting their campaign activities.  Austin is therefore not an exception but fits with the rule of many cases; actually, the majority in Citizens will be an exception.  Nothing distinguishes Citizens from the rule. This case, Citizens, should eventually be overruled.”

Considering Kagan’s Scholarship

You can guess where this post is going.  In one of Dean Kagan’s very few law review articles, she describes the legal “rule” in agreement with Citizens United‘s conservative majority, not Stevens’ dissent, and says Austin can’t be distinguished.  She does something similar for phone and cable companies (as I’ll explain), again siding with the largest corporations (and Justices Antonin Scalia and Clarence Thomas) over Stevens.

In the common language of law review articles, the conclusion can almost be implied: these exceptions should be overruled, as they are unjustified exceptions in the law.

Kagan’s Private Speech, Public Purpose

As reporters have noted, Kagan’s scholarship is “dense” and “technical,” and there’s not much of it.  But her scholarship seems to reject the Stevens/Obama position on Austin and Citizens United and support the conservatives’ position—even if it does so densely and technically.

One of Kagan’s few major articles is called Private Speech, Public Purpose. It was published in 1996—long before Citizens, but it discussed Austin, the case Citizens overruled. I will focus on pages 464-472, for anyone interested in rebutting or confirming my thinking here.

In these pages, Kagan discusses what she calls the Buckley principle (named after a case).  That “Buckley principle” states that government may not “restrict the speech of some elements of our society [think: powerful corporations] in order to enhance the relative voice of others [think: average individuals].”  Her Buckley principle is almost the opposite of the Obama statement that “powerful interests must not be allowed to drown out the voices of ordinary citizens.”

How does Kagan treat the Buckley principle?  It is her First Amendment “rule.” She says the principle “has ramifications far beyond the area of campaign finance. It applies as well to a wide variety of schemes designed to promote balance or diversity of opinion.” By “applying” to those schemes, she suggests it forbids them.

More specifically on corporations, she wrote:

Campaign finance laws like those in Buckley easily can serve as incumbent-protection devices, insulating current officeholders from challenge and criticism.

When such laws apply only to certain speakers or subjects, the danger of illicit motive becomes even greater; for example, the law in First National Bank v Bellotti [cited repeatedly by the Citizens conservative majority], which barred corporations from spending money in referendum campaigns, almost surely arose from the historic role of corporate expenditures in defeating referenda on taxation.

The last sentence above suggests that laws singling out “certain speakers”— only corporations, for example—are most likely to reflect an illegitimate speech-motive, and therefore to violate the constitution.  That would agree with the Citizens conservatives.  This is her rule.

What is the exception?  What else.  Austin. The case overruled by Citizens.  It is a “lapse.”

She presents Austin not as a rule (or an overriding “principle” like Buckley‘s) but merely an example of where the Court’s “commitment to the Buckley principle” has “lapsed on some occasions.”  She notes that Austin rested on Obama’s rationale—one she abandoned in the the Citizens argument–that “corporate wealth could cause ‘distortion’ and ‘unfairly influence elections.’”

And can we distinguish Austin?  Turns out, nope.

In a footnote, she explains that the Court failed to convincingly distinguish Austin from the Buckley principle. In fact, Kagan cites the exceptional Austin three other times in the article—but each time she cites not to the Austin majority (supporting Obama/Stevens), as one would expect, but to the Scalia dissent.  And she does so generally to use Scalia’s points to support her own.

Kagan’s Parallel Argument: Comcast, Time Warner Cable, Verizon, and AT&T

Whether the First Amendment bans government restrictions on corporate campaigning is one question.

Another question is whether the First Amendment bars governments from imposing some regulations on cable and phone companies. Nearly every day, lawyers for the cable and phone companies argue that any regulations of their industries burden their “speech” rights.  In arguing against net neutrality–a rule prohibiting phone and cable companies from implementing their plan to restrict users’ access to an open Internet–the companies argue they have a First Amendment right to block websites and technologies on the Internet, for example (see here and here, here, here).

Yes, it’s a pretty crazy argument.  But it’s one that several judges, and maybe Elena Kagan, have some sympathy for.

In her article, she discusses a major case called Turner, and she seems to agree with the cable companies’ most aggressive arguments.

To keep it (overly) simple here—Turner, in the mid-1990s, upheld a congressional statute meant to promote diverse speakers on the cable platform.  Cable operators argued that Congress was unconstitutionally “burdening” the “speech” rights they have to determine exactly which channels their subscribers will receive.

A Supreme Court majority rejected that argument and upheld the law.  Stevens wrote separately to say he would have therefore gone even farther than the majority in deferring to Congress on this law.

Rule: Because Turner upheld a law meant to promote diverse speakers, Turner does not support Kagan’s broad reading of the supposed Buckley “rule.”  In fact, Kagan says that the Buckley principle “could summarize the view” of the Turner dissenters, who sided with the cable companies.

Exception: Turner contradicts her Buckley rule. As did Austin.

No-Distinction: Can Turner be distinguished from Buckley‘s rule?  Kagan says no, again, in a footnote.  (Her point is the cable rules “may be said to constitute a direct restriction” exactly like one in Buckley.)

So, once again,to Kagan, when a Court permits government to adopt a law for the largest corporations meant to promote diverse speech, it is an unjustified exception.

Am I Jumping To Conclusions?

Here is the conclusion I am reaching: the implication of her arguments are that Austin should be overruled (Citizens United did that) and so should Turner, under the standard argument model, because they are “exceptions” to the broad rule.  She does not explicitly call for their reversal, but the argument structure almost necessarily implies it.

My caveats are:

1. She didn’t come right out and say the cases should be overruled.  She just made every other step in the argument, and didn’t state the usual conclusion.  Maybe that means she disagrees with overruling the cases.  But there’s little indication of that either.

2. Kagan wrote this article 14 years ago, and both the law and Kagan herself have changed since.  She may have a different view of the rule and the exception for campaign finance and cable, or a different view of how they apply.  She doesn’t have a detailed record on the question.

3. Kagan’s article claims to be descriptive, not normative.  That is, she claims largely to be just describing case law, not endorsing it.  But many people who support Austin and/or Turner would describe the law differently than she did–including Stevens in his Citizens dissent, and Turner in its majority, and scholars like C. Edwin Baker (also here), Jack Balkin, Yochai Benkler, and others.

In her descriptive story, she admits that the Buckley sentence she takes as a principle is among the “most castigated passages in modern First Amendment case law.” Justices Breyer and Justices Stevens have both stated that the Buckley claim descriptively “cannot be taken literally,” as it would make time-limits on congressional speeches unconstitutional. It would also make copyright unconstitutional, as copyright silences copiers to increase the relative voice of creators.  Yet, for Kagan (and Scalia, not Stevens or Breyer), descriptively, the Buckley sentence passage reflects a general rule.

Beyond description, Kagan seems to defends the Buckley principle as a means for judges to determine improper government motives regarding speech—using as an example limiting campaign expenditures by corporations, quoted above.

Upshot

Does Kagan support a broad reading of Austin and Turner, or a broad reading of Buckley, Citizens, and the Turner dissent and the Austin dissent?

Does she agree with Scalia and Thomas or with Obama and Stevens? … OK, that sounds loaded, but I don’t actually know the answer, from the record.

The rightwing American Spectator has a blog called “the Prowler,” which apparently has a history of posting spectacularly wrong “news” from “always-unnamed Washington insiders and Democratic officials” who malign Democrats “to an anonymous blogger working for a super-conservative magazine.”  Uh… right.  This reporting style doesn’t strike me (or others) as credible.  But I am not an avid reader of the Prowler, preferring my fiction to come in paperback.

But today I read a story about the senior counselor to the FCC Chairman, a guy named Colin Crowell. And I know a little about telecom, so I don’t have to take the Prowler‘s story on faith.  I know it’s wrong.  If I had ever considered the Prowler blog credible, I wouldn’t ever again.

Yesterday, Crowell announced he is leaving the FCC after more than 20 years of public service. An FCC spokesperson said Crowell was hoping to pursue something different, now that the FCC has released its wide-ranging National Broadband Plan–a plan that consumed much of the agency’s time and required Crowell’s expertise over the last year.

When I read that Crowell was leaving, I wasn’t surprised.  I had long assumed that Crowell would leave shortly after the National Broadband Plan was issued.  I would have been surprised if he stuck around much longer.  I think most other people who interact with the FCC would have had the same assumption.  The plan was a huge undertaking, and many would leave the FCC after it was released.

After over 20 years of government service, I assume, a guy needs a change. A government official at his level spends less time with his family (or even getting a good night sleep) than he’d like, and is tethered to his Blackberry far more than anyone should be. It’s not easy.  He deserves our thanks. Our country is better off that people as brilliant, hard-working, and straight-forward as Crowell are willing to serve, and to serve so well so long.

The Prowler heard something different from what many of us had assumed for many months.  Some apparently uninformed or misinformed–and completely anonymous–“staff” who work at the FCC went off the record  to say the long-expected departure “was so ill-timed that unless it was related to a serious health or family issue that it had to be a result of differences over policy with the chairman.” This sentence is the opposite of well-sourced and well-reasoned.  But the Prowler gets more specific in its poorly-sourced reasoning:

On Monday, the Washington Post reported that Genachowski was considering not regulating broadband networks, a decision, if true, that would have left Crowell’s many friends on the extreme left very angry.  … Other sources say that if Genachowski was leaning toward such a policy decision, Crowell would have been left in an untenable position and unable to defend it, and thus forced to resign.

Turns out, the FCC isn’t going to make that policy decision.  So Crowell wouldn’t have been put in that “untenable position.”  But my source is only the Wall Street Journal–one of Colin’s extreme leftist friends, according to anonymous, ignorant sources.

In short, the routine departure of a public servant, albeit an important one, after 20 years making sacrifices for the public in Congress and the FCC, is just that.  Sorry, American Spectator, no “conspiracy” here.  To match the no “sources,” no “logic,” and no “facts” in your story.

A somewhat obtuse Washington Post article today says that the FCC Chairman is considering a “deregulatory” framework for Internet access.

Translating the article is simple for those watching this debate at political sites: the FCC is considering following the Bush administration’s disastrous policies of stripping itself of jurisdiction over Internet access, treating such access as effectively un-regulatable “information services.” The FCC’s recent loss at the D.C. Circuit made it clear that the practical effect of such a decision would be to hand the Internet over to the phone and cable companies, undermining innovation, competition online, and Americans’ interests in free speech, in privacy, and in associations. The FCC would then face insurmountable legal obstacles to pursuing network neutrality, a common-sense policy that would forbid cable and phone companies from doing what they’ve long lobbied to do: block or discriminate against websites and applications on the Internet.  This would violate Obama campaign promises.  (See clips here and here, for example.)

This episode is an example of what Jack Balkin often writes about—how the most important free speech issues of our day will not be decided by the Supreme Court but through technical decisions by bodies like the FCC.  And they will be decided not by lawyers or engineers or policy experts, but perhaps by lobbyists and executives working for the phone and cable companies.  These lobbyists are urging the FCC to follow the path of bureaucrats and politicians before them: break a promise to the public, but do it in an obscure, technical-sounding way so that nobody understands, until it’s too late.

At the heart of the debate is the issue of Internet openness – whether to allow the phone and cable companies to control everything you do on the Internet, or to ensure that the network infrastructure provides access to an open, unfettered space for communications. Many scholars have written in this space – Jack Balkin, Larry Lessig, Yochai Benkler, Barbara van Schewick, Tim Wu, Mark Lemley, Susan Crawford, and Brett Frischmann, to name a few. All of them have supported control by the public over control by the phone and cable execs.  Tim Wu, Susan Crawford, and I explained the legal issue in a letter to the Chairman we sent last Friday.

And the FCC has ostensibly supported this goal as well – the Chairman has pledged “unwavering support” for network neutrality. The President has said he is a big supporter or network neutrality and that he would appoint FCC Commissioners who supported network neutrality.  But to get to enforceable network neutrality, the FCC must first correct the mistakes of the past, most made under the Bush administration. The FCC under George W. Bush stripped itself of jurisdiction over Internet practices with decisions issued from 2002 to 2007—in that deregulatory haze that led to Wall Street abuses, our Internet infrastructure falling behind other nations, and an economic collapse.  Regulation to protect consumers and competition was considered as quaint and outdated as the Geneva Conventions.

The Obama administration promised to reverse these failed Internet policies, and Barack Obama emphatically promised network neutrality during the campaign and since becoming president.

In 2005, the Supreme Court had upheld the Bush framework under Chevron, but made it clear the old, traditional, framework was also a reasonable interpretation of the statute, and one that gave the FCC clear authority over broadband communications services.

In early April of this year, the D.C. Circuit told the FCC that the Bush policies, while a reasonable framework under Chevron, left the FCC with very-little-to-no authority over broadband. Under the Bush framework, the FCC could not even stop the largest cable company from (secretly) blocking valuable and popular Internet applications. This was a pretty stark violation of the open Internet, which the Bush framework couldn’t reach.

The logical next step, in the wake of these cases, is self-evident: go back to the old pre-Bush framework, the framework that (even) Justice Scalia and two other Justices believed to be the unambiguous intention of Congress. That framework is found in Title II of the Communications Act, designed for all two-way communications networks.

The FCC imposes this framework on many broadband services already: business networks, middle mile networks, and many rural Internet networks.  Title II even governs supposedly competitive, largely deregulated phone services, like long distance calling and mobile phone service.  The FCC also has the power under Title II to forbear from any really problematic, onerous regulations, and tailor regulations to individual networks and circumstances.

Fixing the Bush mistakes should be a no-brainer for this administration, and it would clear the path for network neutrality, universal service for broadband, privacy protections, network security policies, and a host of other essential issues.

But recent press accounts suggest the political pressure of the few, powerful phone and cable carriers might be too much for the politics of hope. Organized money may defeat organized people.  I find it hard to believe, but public choice theory suggests that the incumbent corporate insiders will win. And that will transform how we participate in public discourse, volunteer for campaigns, create culture, dissent politically.  That will act to close off many of the most important channels of political change in our nation, and the world.

The principle of network neutrality is—as Jack and Yochai and others have written—one of the most important principles for ensuring freedom of speech in the 21^st Century.  If this issue goes the wrong way, it’s not only a broken political promise, but disastrous policy for our democracy.

On Tuesday, the D.C. Circuit ruled on an important Internet law case I argued for the FCC’s supporting Intervenors, where the court rejected legal theories I helped craft on complaint I filed when I was, oddly, the only on-staff lawyer of the lead complainant, the media reform/open Internet group called Free Press.  (I had deferred my current law professorship for that position.)  Jack wrote about it yesterday, and I wanted to post a few thoughts about the decision.

I’ll begin with how the decision affects you: it’s really bad news for you and other Americans.  I’m sorry to be the one to tell you, but I’m sure you’ve heard (from multiple news sources). The court decision is a stunning, sweeping defeat for the FCC and for its ability to protect consumers, foster competition and innovation, and preserve the Internet’s role as an engine of free speech and democratic discourse. It means, essentially, that the largest phone and cable companies can secretly block dozens of technologies used by large corporations, nonprofits, and individuals to speak and organize, and the FCC can do nothing to protect us.   (The subject of the Free Press-Comcast case, which this decision vacated, was precisely this factual scenario.)  Tuesday’s decision  also means the FCC cannot implement many aspects of its recently-issued National Broadband Plan, and the US will continue to fall behind the rest of the world with far slower, more expensive, and less innovative broadband service, strangling our economy and harming our democracy.

Really. At least, that’s the effect if the Obama FCC continues to follow the legal framework adopted under the Bush administration–a framework that requires the FCC to play football with a tennis racket, a framework for authority that the DC Circuit just beat to death, shot, and then drowned.

From my point of view, I was reminded of my friend Larry Lessig’s classic article, “How I Lost the Big One,” where he said he wished he could go back in time and argue differently an important test case he lost in 2003 (Eldred v. Ashcroft).  I’ve thought about the case, for months now since the argument, and I don’t feel that way.  If we argued it poorly in Tuesday’s loss, we at least argued it 9 different ways (which I discuss below).  I doubt our tenth best argument would have worked any better. Plus, I benefited from the advice of so many lawyers and law professors during the FCC proceeding against Comcast, and on appeal (where the FCC’s excellent lawyers, not I, carried the oar), that I don’t think we could have had better lawyers considering the issues.  (Thanks go to friends like Jack Balkin, Larry, Tim Wu, Barbara van Schewick, Yochai Benkler, those at Media Access Project and Public Knowledge, as well as, primarily, the amazing team at Free Press, those at the FCC, and many many others, for making sure some young law professor wouldn’t go astray.)

For this post, I want to look on the bright side.

First, we succeeded in many ways, factually.  Politically, we brought a case that helped educate the public and the FCC about blocking and discriminating practices that Comcast claimed were becoming an industry standard across the entire Internet, at least in the US; hundreds of thousands of people got involved to stand up for an open, free Internet; and organizations ranging from the Christian Coalition to Moveon to people who love Barbershop Quartets stood together to ask their government to preserve the democratic promise of the Internet.  And, because of public scrutiny and the FCC investigation, Comcast changed its practices.  Those are good things.

Second (and I’ll spend more time on this), the case served its purpose perfectly–it was a “test” case to test several important questions and get a definitive answer.

So, here’s some background.  I’m sorry we need background, but your speech rights are generally threatened by several years of complex-sounding legal decisions and political maneuvers (just think about the cases leading up to Citizens United).  So background helps.

The Bush administration, from 2001 to 2005, worked doggedly to “deregulate” broadband Internet access.  The effect was, among other things, you would not be able to choose your own ISP on DSL or cable modem the same way you could on dial-up (choosing among, say, Earthlink and NetZero and AOL, not just your phone company’s ISP).

Turns out, substantively, that decision has resulted in our nation having slower, more expensive broadband Internet connections, as independent ISPs invest in new technologies and drive competition.  That FCC decision also put the FCC on (what the DC Circuit believes to be) flimsy legal grounds for protecting consumers, even when the second largest ISP (Comcast) blocks some of the most popular, pervasive technologies used by millions of Americans.

Indeed, shortly after these deregulatory decisions, the biggest carriers, like AT&T and Verizon, announced that they would transform the Internet into a pay-for-play medium they controlled, rather than an open, general purpose technology we all know and love.  That would totally suck for our country.  Millions noticed, and this sparked a citizen movement organized by Free Press through a coalition called Save the Internet.

In response, the carriers backtracked, in their public rhetoric, and argued a few things.

(1) We’d never block or interfere with the open Internet, even though we have announced the intention to do just that, and are spending hundreds of millions of dollars lobbying against “net neutrality” rules forbidding us from doing that.  And (2) if we ever did interfere with the open Internet, don’t worry, the FCC will punish us.  And (3) the FCC will have the jurisdiction to do.

So we tested those three point.

1.  Would the carriers interfere with Internet content and applications? Based on the FCC investigation of Comcast’s actions, the answer was a resounding yes.  Carriers would not only interfere, and with very popular technologies, they would lie about it, over and over, and then when caught, lie some more.  And afterward, they’d keep lying, and keep blocking.  If the FCC learned anything during that investigation, it is that Comcast was not a good faith actor.  Recently, Windstream engaged in some of its own interference, hijacking search queries.

2. Would the FCC punish bad actors? We thought this unlikely–the FCC is a notoriously captured agency that generally follows the orders of the companies it is supposed to regulate.  The carriers seemed to have even more power under the Bush FCC. But in the FCC’s entire history, it has adopted just a handful of pro-consumer decisions in the face of carrier-pressure.  But, it turned out, to our surprise, the answer was yes, the FCC would act, thanks largely to a citizen outcry and engagement.  The answer was yes, even when the Chairman was a deregulatory Republican named Kevin Martin facing unbelievable political pressure brought to bear by some of the nation’s most powerful and ruthless companies, with the backing of many Republican leaders.

3. Finally, does the FCC have the authority to protect consumers?

The worst-case scenario for us was that we would get an unclear answer on jurisdiction.  Free Press devoted considerable resources to this case–their only lawyer spent almost every moment of his day working on it, alongside three other senior Free Press policy staff, who had similarly overworked schedules in taking on almost every law firm and lobbying shop in town–and many others pitched in from other organizations and from academia.  The last thing we wanted was for the DC Circuit to avoid the key question of the test case on appeal–does the FCC have jurisdiction to protect consumers, preserve an open Internet, encourage deployment of new technologies.

We were given the guidance we wanted, although the answer we didn’t.

The Obama FCC had thought, until yesterday, that under the Bush-FCC’s framework, the FCC maintained something lawyers call “Title I,” or “ancillary jurisdiction” over Internet access providers like Comcast, AT&T, Cox, Verizon, and Time Warner Cable.  On first read, it looks to me like the court unanimously removed any ambiguity–the short answer is “no.”  The long answer is “not at all.” Longer still: “Not in a boat, not with a goat, not in the rain, not on a train.”  There seems to be no wiggle room in the court’s decision, on first read.

So we lost the big one, and lost it bigtime.  Any “narrower” loss would have provided little guidance and been even worse for the public.

This clarity derives partly from our case before the FCC, where we urged the FCC to adopt every single possible basis of jurisdiction under Title I, so that a reviewing court could either reject them all or sustain one.  (These are the 9 or so arguments we raised.)  Our strategy was that there’d be no point in wondering, like one of my heroes Larry Lessig, “Would another argument have worked?”  No point in having to go back to the court five years later.  We set the groundwork below.  And then, on appeal,when the judges ominously asked the FCC how the FCC wanted to lose (on some other grounds or on “jurisdiction,” which included 9 legs of arguments), the FCC asked for “guidance”, and I similarly then pleaded for a jurisdictional decision setting the question to rest, after five years of debate, and two years after the complaint.

It’s like a relationship–if you want to break up, do it now, don’t let us wonder as you string us along.

So: test case resolved.

1. The carriers will actually interfere with the Internet, though they will lie and say they’d never do it, and then lie and say they haven’t done it.

2. The FCC will act, but only if three Commissioners are heroic enough to withstand an overwhelming political assault.

3. The Bush-era FCC decisions gave away FCC authority to protect the American public for the most important communications medium the world has ever known.  Unless the FCC reverses those decisions (or there is another reversal), the Internet will become the carriers’ controlled entertainment machine while other nations surpass us with open, high speed, affordable broadband infrastructures supporting jobs and innovation.  In short, unless this FCC re-evaluates its existing framework, the Bush administration may have made the FCC  irrelevant, and the nation with it.

Tomorrow I’ll be speaking at an event organized by the Federal Communications Bar Association.

It’s actually a CLE, at an amazing venue–the fabulously fabulous Newseum–and an amazing line-up.  Since it’s not really posted online, I figured I’d post about it.

(As for why I’ve been posting less recently… I’ve been super busy law-professoring: teaching and researching/writing a legal article.  Conference-speaking is a nice change.  I also recently helped Lincoln, Nebraska’s government apply for the Google Fiber Sweepstakes!  But I did pose a competition question to the FCC Chairman via the Washington Post, which ended up on a far more awesome blog than my own.)

So I’ve been living la vida law-professor.

The best part of such vida, beyond getting to use terms like res ipsa loquitor and ipso facto in my daily life, is getting to discuss important issues like the First Amendment’s future with thoughtful people, like those speaking tomorrow.  Here’s an agenda.  I speak on the last panel, and will probably speak last to disagree vigorously with all the nice people on my panel.  I was told I was the only “pro-regulatory” person on the panel–but I consider myself, you know, “pro-citizen,” “pro-speech,” and “pro-other-good-things-like-chocolate.”

I’m sure the lineup has been updated since the one posted in the FCBA newsletter…

Wednesday,March 31, 1:00 – 5:00 p.m.

Media Regulation and the First Amendment in the 21st Century [CLE]

Presented by the FCBA Mass Media Committee in association with the Freedom Forum & the ABA Forum on Communications Law

Agenda

1:00 – 1:05 p.m. WELCOME

1:05 – 1:35 p.m. KEYNOTE ADDRESS

1:35 – 2:30 p.m. TECHNOLOGIES OF FREEDOM: WHAT ARE THE REGULATORY IMPLICATIONS OF THE EVOLVING MEDIA ENVIRONMENT ?

Moderator: TBD

Speakers:

Alan Davidson, Director of Government Relations and Public Policy, Google

JoeWaz, Senior Vice President, External Affairs and Public Policy Counsel, Comcast

Gigi Sohn, President and Co-Founder, Public Knowledge

Others TBD

2:40 – 2:50 p.m.

BREAK

2:50 – 3:45 p.m.

THE FUTURE OF JOURNAL I SM: I S I T T IME FOR A BAI LOUT ?

Moderator: Barbara Cochran, President Emeritus, RTNDA

Speakers:

StevenWaldman, Senior Advisor to Chairman Julius Genachowski. Federal Communications Commission

BarbaraWall, Vice President, Gannett

Andy Schwartzman, President and CEO, Media Access Project

Gene Policinski, Vice President and Executive Director of the First Amendment Center, Freedom Forum

3:55 – 5:00 p.m.

NEW T ECHNOLOGY AND THE F IRS T AMENDMENT: WHAT I S THE RAT IONAL E FOR REGULAT ION?

Moderator: Glen O. Robinson, David and Mary Harrison Distinguished Professor of Law Emeritus, University of Virginia

Speakers:

Bob Corn-Revere, Partner, DavisWrightTremaine LLP

Kurt Wimmer, Partner, Covington & Burling LLP

Christopher Yoo, Professor of Law, Communication, and Computer and Information Science; Director, Center for Technology, Innovation, and Competition, University of Pennsylvania

Marvin Ammori, Assistant Professor of Law, University of Nebraska-Lincoln, Faculty Advisor, Space & Telecommunications Law LLM Program

I watched President Obama address the Democratic retreat a few days ago.  Here’s the full transcript and video.

I liked one answer, which I hope encourages people in government to summon the courage to follow through on their (and our) hopes for change.  It touches on why some people are willing to stand up and be counted, to fight for something better for all Americans.

For me, it is constantly important to remind myself why I got into this business in the first place; why I’m willing to be away from my family for big stretches at a time; the financial sacrifices that so many of you have made; being subject to criticism constantly. You don’t get in this for the fame. You don’t get in it for the title. You get in it because somewhere in your background, at some point in time, you decided there was an issue that was so important that you were willing to stand up and be counted. You were going to fight for something. And you decided you were going to run as a Democrat because there was a core set of values within the Democratic Party about making sure that everybody had a fair shot, making sure that middle-class folks were treated fairly in our economy, making sure that those who were on the outside had a way in that led you to get involved in public service.

And that’s what we have to remind ourselves, especially when it’s hard — especially when it’s hard. You look at an issue right now like health care. So many of us campaigned on the idea that we were going to change this health care system. So many of us looked people in the eye who had been denied because of a preexisting condition, or just didn’t have health insurance at all, or small business owners in our communities who told us that their premiums had gone up 25 percent or 30 percent. And we said we were going to change it.

Well, here we are with a chance to change it.

Yes.  Here’s their chance.  They can’t be judged by what they said they were going to do, or what they hoped they could do (if it weren’t for that darn political pressure they never accounted for), or what in their heart they’d like to do.  They can only be judged on what they actually do.  No excuses.

Their supporters don’t want to see these politicians “go native” in DC, follow the old ways, or get weak-kneed.  These politicians and appointees should remind themselves, as does our President, of why they got into this business in the first place.

Last Friday, Cablevision filed a cert petition to the US Supreme Court in what may be the next Citizens United.

Citizens United, of course, in President Obama’s words, “opened the floodgates” for corporate money to overwhelm the political system. Almost 70% of Americans believe it hands even more power to lobbyists. Opponents of Citizens United (and previous cases leading to it) are considering and introducing remedying legislation.

But, you respond, the Internet remains. Citizens United’s infusion of corporate money will largely go to campaign TV ads and films. The Internet enables speech—through blogs and low-budget, individual videos that can go viral. It enables associations—as individuals find each other and form groups around issues and candidates. It can help aggregate small donors.

The Internet might not act as a perfect counterbalance, you say, but it’s a start.

That’s true. Unless this Supreme Court interprets the First Amendment to eliminate the openness we’ve always expected of the Internet. That is, the Internet was historically open and free to all users because of traditional telecommunications laws (Lemley and Lessig explain). The Bush II administration deregulated access to the Internet—lifting laws applying to AT&T (the largest donor to federal campaigns of any company) and Comcast. Deregulation for Internet access then worked about as well as deregulation of the finance industry—it’s been an utter disaster, placing our nation far behind other nations in terms of the speeds, availability, and cost of Internet access.

Deregulation also has threatened the openness of the Internet. Carriers like AT&T and Comcast have expressed a desire to “manage” other people’s Internet sites and technologies however they want and to extort fees from providers of applications and content. This would undermine the traditional openness of the Internet. AT&T could decide to limit the videos available on YouTube or on a “conservative Youtube”—or could simply require everyone seeking to provide TV programming through the Internet to get permission from AT&T to be on the Internet.  AT&T could impose a surcharge on every iTunes download—or every political donation—and charge campaigns and corporations for every political ad. As AT&T’s former CEO claims, the Internet is “their pipes” and AT&T doesn’t want anyone using those pipes without paying AT&T tribute.

In response to this threat to democracy, advocates and enlightened lawmakers have fought since the Bush II deregulation for a “network neutrality” law to keep the Internet open on all platforms, wired and wireless.

On Monday, the President reaffirmed—again—that he is a “big believer” in network neutrality, no matter how many angry lobbyists the carriers throw at him or the FCC. (He said it more politely, but unmistakably.) The President was answering a question about network neutrality—the number 1 question about the economy uploaded by users for an innovative online interview with the President.

How could the courts screw this up too? If the consumer advocates, scholars, and lawmakers can actually succeed in defeating the lobbying might of AT&T, Verizon, and Comcast, then the courts could overturn the result. You might think that the public’s free speech rights are implicated in their ability to use the Internet to communicate with whomever they want, however they want, through the Internet. But to these courts, the First Amendment belongs to powerful corporations.

Cable lobbyists have argued that cable and phone companies have a First Amendment right to block speech on the Internet. Really. They argue that a case called Turner Broadcasting, a landmark decision from 1997, imposes heightened constitutional scrutiny on any rule impinging on the carriers’ “editorial discretion” to block websites in offering access to the Internet. So even though bloggers, video-makers, and online news outlets might make editorial decisions, the cable or phone company is the ultimate constitutional “editor” of the Internet with inviolable free speech rights.

They argue Turner would likely impose intermediate scrutiny on any law meant to ensure diverse speakers online—namely an Internet openness rule. In doing so, Turner would not, however, promote the wide diversity of diverse and antagonistic speakers—the First Amendment’s most “basic tenet,” according to Justice Kennedy, author of Citizens United. Rather it would succeed in promoting the narrowest diversity of “speakers” controlling American speech—AT&T, Comcast, Verizon, Time Warner Cable, above all others. (I’ve discussed this elsewhere.)

The Cablevision petition for certiorari asks the Court to overrule Turner. Many (like me) view Turner as akin to Lochner, for imposing heightened scrutiny for rules where far more deference is required. But the cable industry views Turner as too soft a hammer. Rather than intermediate scrutiny, the industry seeks strict scrutiny for all rules. The industry is already pointing to Citizens United for its arguments, encouraging the Court to overrule another key speech precedent.

I could try to point to a silver lining. First, I doubt the Court needs to overrule Turner to reverse the FCC, as Cablevision has decent facts for an arbitrary and capricious challenge. But this Court doesn’t always miss an opportunity to transform the law.

Second, I believed that Turner might have applied to cable operators in providing cable TV services, but not to operators when  providing Internet access service. This is because Internet access, like phone service, was historically subject to common carrier rules, removing all “editorial” discretion from Internet access providers, without implicating the First Amendment.

But I am now more skeptical of that silver lining, being reminded of our courts.  A few weeks ago, I was involved in a case involving the FCC’s authority to impose a landmark network neutrality order on Comcast, for blocking peer-to-peer transfers. Comcast had not made a First Amendment argument on appeal; in the opinion below, the (then-Republican) FCC had rejected the First Amendment argument in a mere, belittling footnote, explaining how an open Internet obviously promotes the values of the First Amendment for all Americans. Nonetheless, a few minutes into Comcast’s oral argument before the DC Circuit, a judge asked: “cable operators have some First Amendment rights, and I don’t see that playing out in this case at all.”

The Cablevision case is likely the first step on this path to “playing out” the First Amendment arguments–for carriers to block or interfere with Internet speech.  We’ll see if the Supreme Court uses the Cablevision petition as an opportunity to step towards vindicating the “First Amendment right” of carriers to dominate all our channels of democratic discourse–from the TV of unlimited corporate expenditures to the Internet of unlimited carrier-control.

This guy named Andrew Keen–who’s made a career of comparing Web 2.0 to Nazism and Marxism, spamming people, trolling, and mis-stating the positions of scholars like Lawrence Lessig–was recently hired by a front group apparently to attack consumer groups like Free Press. The method of his attack is to accuse people of being paranoid, radicals, socialist, etc. He’s like a mini-Glenn-Beck. The phone and cable companies hire many like him.

One of his attacks, on TechCrunch, was subject to disgusted, acidic responses in dozens of comments by readers. Another attack, which he placed in The Hill, goes after Free Press for what is a White House and State Department policy position–that we need to ensure an open Internet at home to have moral legitimacy in arguing for an open Internet abroad. Both attacks are noise–kind of the moral equivalent to his spamming. If you read the comments (and responses) to some of the industry’s other little attack dogs, it turns out informed readers can see through the BS of the distracting trolls.

You wonder why AT&T, Verizon, and others hire such vicious little lowlifes. Really, it’s a mystery. It’s a bigger mystery because, at the same time they hire insufferables like Keen in their front groups, they hire really smart, likable people in-house. While some people have been surprised by this, I like a lot of the lobbyists and lawyers at places like Comcast, Verizon, MPAA, and AT&T. They’re nice people, they’re very charming, they’re very smart. They sometimes argue the sky is falling and the economy will collapse (!!!) if you actually try to protect speech and economic innovation with basic network neutrality rules. But they still find a way to sound almost reasonable while playing chicken little. They’re clearly paid to sound reasonable, unlike Keen and others.

Why would these huge companies–expert in lobbying–pay charming, smart people to sound reasonable as their in-house lobbyists and then pay obnoxious, abrasive charlatans in various “think tanks” and front groups?

I’ve decided there are two reasons, but I welcome other thoughts.

First, when people like Keen are spinning paranoia theories (and comparing Web 2.0 to Marxist communism), that makes the carriers’ lobbyists look far more reasonable in comparison. It’s like buying an extremist so your in-house lobbyists look less extreme. It enables these in-house lobbyists to then decry the “rhetoric,” “vituperation,” or “vitriol” of policy debates–debates they’ve actually intentionally turned vitriolic.

Second, anyone who responds to Keen becomes the “other extreme,” which helps marginalize the carriers’ enemies. For example, Keen is attacking Free Press (a group I advise). Keen’s industry backers then go to government officials and say, “Free Press is too far ‘left,’ this guy Keen a little too far ‘right,’ we’ve got your Goldilocks position, in the middle.” Somehow this works for them, because government folks love a compromise; sometimes, it seems they love being in the “middle” even more than being “correct.” Government officials are usually overworked, under severe industry pressure, and like the idea of a “moderate” choice, perhaps a “win-win,” “compromise,” “middle ground,” rather than taking the intense political heat for pursuing the correct, consumer-focused position to address our nation’s real, long-term challenges. In reality, Free Press is generally correct. Keen is generally nuts (even when he’s not talking communists and Nazis). And the carriers (on the contentious issues where they oppose, say, Free Press) are not correct, not in the middle, but just flat wrong. Creating front groups just helps create an optical illusion of “moderation”–rather than the truth, “wrongness”–for the carriers’ likable in-house lobbyists.

These front groups also put people like me in a catch-22; do I call out the Nazi-likening, Communist-seeking, elitist-extremist? Or does that permit my charming, in-house industry friends to look above the fray and above the noise… moderate if you will?

In short, these front groups exist to distract from real issues, to make industry look reasonable, and to make anyone responding to them look like the “other” extreme, rather than the sensible, consumer-focused policy advocate. It’s for this reason that I tend to turn down invitations to speak on panels sitting besides front-group hacks rather than in-house lobbyists. And I tend not to respond to these people, if I can help it.

But when these corporations–and their charming, “reasonable” lobbyists–continue to hire these professional trolls, they should to be called out for poisoning debate.

Last Friday, an appeals court heard arguments on Comcast v. FCC, which centered on the landmark 2008 FCC Net Neutrality ruling ordering Comcast to stop blocking users’ ability to use peer-to-peer technologies like BitTorrent. The decision was a major victory for consumers—signifying that the FCC would act to preserve an open Internet when phone and cable companies tried to interfere with the applications and content chosen by users.

On Monday, Comcast’s Executive Vice President, David Cohen, published a blog post about the case, where he claimed, essentially, that the FCC had been unfair to Comcast.

Namely, said Cohen, Comcast lacked “fair notice” the FCC would act on consumer complaints about Network Neutrality violations.  Moreover, he said, Comcast lacked fair notice that the FCC would judge Comcast by the standards of the FCC’s well-known 2005 Internet Policy Statement, which declared that Americans are “entitled” to use the legal applications and content of their choice on the Internet.

Although Cohen doesn’t mention this part of the 2008 ruling, the FCC also stated that Comcast’s actions in that proceeding raised “troubling questions about Comcast’s candor,” which is the bureaucratic way to say “lying… a lot… to the public and government, about interfering with the Internet.”

And what Cohen doesn’t say is he has chutzpah to argue about fair notice, as Comcast gave the public no notice at all that it was blocking online technologies.

Notice to Comcast

Let’s take the Adelphia order. In 2006, Comcast and Time Warner Cable bought the cable assets of a company called Adelphia, and the FCC had to approve the transfer.

Free Press and other groups challenged the merger and requested a Network Neutrality condition prohibiting Comcast “from discriminating against providers of content, video, or voice services offered via broadband.”

The FCC rejected the condition, stating that the FCC would accept complaints and judge Comcast based on the FCC’s policy statement: “This statement contains principles against which the conduct of Comcast, Time Warner, and other broadband service providers can be measured.” And the Commission assured consumers  that “[i]f in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.”

When the FCC says “affected parties may file a complaint,” that sounds like the FCC would actually accept the complaint.  Unless the FCC was welcoming consumer complaints it planned to ignore, Comcast had fair notice that the FCC would act on complaints just like the complaint brought by Free Press and others, for “willfully blocking or degrading Internet content.”

Comcast: Notice for Me, Not for You

Comcast provided the public no notice.

Comcast was blocking online technologies in various ways from 2005 to 2008. Comcast denied the blocking over and over. When one user—Robb Topolski—proved that Comcast was blocking these technologies, Comcast kept lying.

For example, a Comcast spokesperson said, “We’re not blocking any access to any application, and we don’t throttle any traffic.”

Whatever you call that (“a lie”), you can’t call it fair notice.