Marvin Ammori

I posted a long blog post a few weeks back about Elena Kagan’s scholarship and what it suggests about her views on Citizens United and the constitutionality of standard media regulation.  Because I spent the next week talking to people about the post, I reviewed her scholarship again and had some more thoughts.  I figured I would post these thoughts, more for discussion than anything else.

So here is another long, geeky post (almost embarrassingly long) about scholarship and legal doctrine.  Scholars write such things about Justices sometimes, so why not about nominees?

I think her scholarship (albeit from last decade) raises interesting questions about her support for some of the positions held by Justice Stevens and President Obama.

This post is not about any particular decision but about a group of “rationales” often advanced by government to defend the constitutionality of adopted laws.  Specifically, the post is about “anti-distortion” rationales—that is, government rationales used to justify speech rules bases on the existing (or potential) speech environment being “distorted” by certain factors (like wealth inequality). Both Obama and Stevens appear sympathetic to anti-distortion rationales, for example, regarding corporate campaign expenditures to un-distort a speech environment that drowns out the voice of ordinary citizens.

It appears that Obama and Stevens are fans of anti-distortion rationales while Dean Kagan likely is not.  In Citizens United, Dean Kagan famously downplayed, if not abandoned, these rationales.  She refers to them in one academic article as even “dangerous.” Sometimes, she even seems to caricature these arguments—which is unusual for her, as her scholarship is generally remarkably nuanced (and brilliant).

In terms of sources, I will discuss primarily a short passage in Kagan’s first article and Kagan’s argument in Citizens United, as well as their relation to the longer passage in Kagan’s scholarship that I discussed in my previous post. Like my last post, this one will be long (for a post) and will discuss legal scholarship and Supreme Court cases.  Again, I’ll name the articles and even the pages (or “find”-able quotes) so others can look to the sources and reach perhaps other conclusions, if they’re interested. And, again, there are important caveats, so it’s not a slam-dunk case.

So before the fold, I’ll present the argument in brief.

Argument in Brief

There are at least two relevant anti-distortion rationales that government can assert to defend speech rules, a broad rationale based on massive wealth inequality distorting speech and a narrow rationale based on the existence of corporate legal rules.  Obama and Stevens have voiced support for even the broad rationale, while the Austin majority rested only on the narrow one.  Thus, while it is unsurprising Kagan’s argument in Citizens rejected the broad rationale, it is perhaps telling that she did not advance even the narrow rationale in the briefs.  In addition, her two major First Amendment articles in the 1990s depicted the broad and narrow anti-distortion rationales by turns as indistinguishable from one another, as conflicting with the First Amendment itself, and even as “dangerous.”

Of course, many caveats must be considered in this somewhat academic exercise.

Continue reading →

Oddly, dozens of Democrats (perhaps 70 again) have signed a letter supporting the talking points and agenda of Glenn Beck and one his major corporate sponsors, AT&T.  This letter also contradicts the technology agenda of Barack Obama, Obama’s Federal Communications Commission, and the Democratic leaders of the House and Senate Commerce Committees that oversee the communications industry.  The “congressional” letter is being peddled by cable and phone lobbyists to the staff of Democratic Congressmen who have a history of putting their names on cable and phone industry’s debunked talking points, sometimes apparently without understanding their meaning.

This letter, being pushed by Rep Gene Green (D-TX),  pertains to whether or not the Internet will remain an open engine of economic and democratic freedom.  In D.C., legislators and lobbyists are debating something called “net neutrality,” which is a common-sense FCC proposal to keep phone and cable companies from interfering with what you can do online and how you can use the Internet.  Without net neutrality, phone and cable companies can limit your online speech and freedom.    I think the Daily Show explains the issue best (here (with John Hodgman) and here).

Glenn Beck, who thinks Barack Obama is a anti-white racist Marxist leading a coup against our country, has launched a holy war against net neutrality.  This guy from “Americans from Prosperity” comes on Beck’s show and spews lies about net neutrality, mainly making bizarre claims that “net neutrality” is a “government takeover,” not a rule to preserve the status quo.  Surprise: AfP is funded by phone and cable companies and has launched a million dollar ad campaign of dishonest arguments.

The fight at the moment turns on whether the FCC should reverse the Bush era “deregulation” of Internet providers, something even Justice Scalia thought the FCC should have done long ago.  Unless the FCC properly “reclassifies” broadband providers under the Communications Act, the FCC cannot stop the largest cable companies when they block the Bible or competing online TV providers.

In fact, a lot more is at stake with “reclassification”: without it the FCC cannot implement its national broadband priorities to make sure all Americans have access to high-speed Internet access. The following national priorities are put in jeopardy without reversing the current “deregulation,” according to the FCC’s general counsel, a lawyer who has served both Republican and Democratic Chairmen:

accelerating broadband access and adoption in rural America;

connecting low-income Americans, Native American communities, and Americans with disabilities;

supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation;

lowering barriers that hinder broadband deployment;

strengthening public safety communications;

cybersecurity;

consumer protection, including transparency and disclosure;

and consumer privacy.

Millions have spoken out in favor of net neutrality, reclassification, and an open Internet for all Americans.  And President Obama said he would take a “backseat to no one” in his support of net neutrality.

But, rather than support the expert agency and their party’s leadership on these issues … some Democrats are joining AT& Glenn Beck (I mean …  AT&T and Glenn Beck), Comcast, corporate-funded groups like AfP, and others dead-set on derailing the Obama presidency.

Some Democrats in Congress have done this before–with 72 of them signing onto an infamous letter of cable talking points to pressure the FCC back in October.  Many of them also receive a lot of money from the industry and its lobbyists.  They are standing with the largest phone and cable companies, not with you. You have to wonder why the congressional leadership isn’t educating their members on the centrality of this issue to the Obama economic and democratic agenda.

Someone should ask them why they’re standing with Glenn Beck, AT&T, and Comcast, and against their own President and the FCC. And if the House leadership or the White House won’t do it, for some reason, you might have to do it for them.

Here’s a list of who to call.

On Monday, Mother Jones published an article by Nick Baumann about Don Verrilli, a White House attorney on the short-list to replace Elena Kagan as Solicitor General. I’m a big fan of Mother Jones and of Nick, and decided to expand on the theme of my quote in that story (“I love that guy”) with a short blog post.  And this isn’t meant to take anything away from the other possible candidates for Solicitor General (I know nothing about that process).

The Mother Jones article describes Don primarily as a copyright lawyer, and primarily as the lawyer who won the Grokster case.  It also provides pro- and con- responses based on that case.

I’m quoted in the story as part of this paragraph:

One might think that the non-profit groups that have fought Verrilli and his clients in court would be clamoring for the White House to reconsider. However, many of its regular opponents respect him. Gigi Sohn, the head of Public Knowledge, a nonprofit that advocates for copyright reform, defended Verrilli in an email to Mother Jones. “I don’t think Don has ‘drunk the Kool-Aid’ of the RIAA or Viacom, he was simply representing his clients,” Sohn wrote, adding that she thought he was “perhaps the most qualified person in the country to be the next Solicitor General.” “I love that guy,” says Marvin Ammori, a law professor who served as the lead lawyer for Free Press, a group that supports media reform and attacks big media companies like Viacom. “He’s an amazing lawyer.”

I’m also quoted this way: “Ammori acknowledged that Verrilli is personally ‘pro-copyright.'”

I agree with everything Gigi said too.  By “pro-copyright,” I didn’t mean Kool-Aid drinking pro-copyright.

Now for the cheers.

Cheer 1.  He is, as I said, an amazing lawyer.  Many of my most talented friends have worked for him and were mentored by him.  (It surprises me how often I say, “Do you know Don Verrili?” and the response is, “Yeah, I worked for him.”  This includes lawyers sympathetic to Youtube.)  And many of my mentors rave about Don’s work as a lawyer, often calling Don the best lawyer they know.

Cheer 2. Not all his cases were Grokster. Don won the Turner case, a major First Amendment case about cable TV, and I am glad he did.  He worked on many important First Amendment cases–for example, Reno v. ACLU, an important Internet law case striking down indecency provisions.  At his law firm, Don worked with the well-known First Amendment lawyer Bruce Ennis (who argued Reno) and clerked for two of the great judges of the 21st Century, Skelly Wright and First Amendment all-star William Brennan.

Beyond that, Don has dedicated himself to pro bono work throughout his career.  He has won several awards for this pro bono work.  Much of that work is death penalty and criminal justice advocacy.  Pro bono, he won a Supreme Court case regarding ineffective assistance of counsel in 2003.

Cheer 3. He strikes me as remarkably thoughtful and fair-minded.  I know him primarily from auditing a small seminar he used to teach at Georgetown Law, called Theories of the First Amendment. When I audited, I was a teaching fellow, having graduated from law school a few years earlier, and had already thought about the First Amendment (and studied it in other classes) for years by then.  I was impressed with Don’s ability to explore all sides of every issue and to encourage all of us to do the same.

I may be biased because he was incredibly responsive–he replied to emails in seconds flat with long, thoughtful replies and seemed to always have time for the students, though he was a prominent partner and argued at least one Supreme Court case that semester.

But What About Grokster?

I think Don shouldn’t be controversial just because of Grokster. After all, all nine Justices ended up agreeing that Grokster was an illegal service.

He got the votes of even Justices Stevens and Breyer–who are not sympathetic to expansive copyright claims–on a copyright claim.  That would usually mean he either didn’t have a “Kool-Aid” copyright claim or that he must be among the very best lawyers in the US.

Either way, he’d make a fine Solicitor General.

The day before President Obama nominated Elena Kagan to the Supreme Court, I wrote a long blog post raising questions about Elena Kagan’s support for or opposition to Citizens United and Turner Broadcasting–that is, her support of or opposition to the constitutionality of certain campaign finance and media/telecom rules, respectively.  My main point was that her scholarship–notably several pages of discussion in one of her major law review articles, published in the mid-1990s—shows considerable sympathy for the largest corporations’ arguments on both issues of campaign finance and media rules.  Said another way, she appeared to agree more with Justices Scalia, Thomas, and Roberts than with Justice Stevens and Obama on them.  I posted this long discussion both at Balkinization and the Huffington Post, which was kind enough to front-page the post.

The day after the post, President Obama nominated Elena Kagan, as expected.  In praising Kagan, Obama specifically mentioned that she chose Citizens United as her first case to argue, despite long odds of victory. He said, “I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy powerful interests must not be allowed to drown out the voices of ordinary citizens.”

So I got all these calls–the New York Times, the Wall Street Journal, Politico, National Journal, etc.

I said that I assumed the President’s team naturally vetted Dean Kagan on these issues.

Also, my evidence was (I thought) highly suggestive, but not necessarily definitive, of her views in the 1990s, and she may have changed her mind since.

These discussions with press prompted me to read and re-read Kagan’s free speech scholarship.  I didn’t find anything in that scholarship pointing in the opposite direction of my initial, limited conclusions.

But the press questions and the scholarship review prompted a few additional thoughts.

Most of these thoughts are not so much criticisms of Kagan per se; they are more like attempts to explore some of her thoughts (or her thoughts from 15 years ago!).

I hope to write them up soon…  They’re mainly thoughts (1) on the “anti-distortion rationale,” which Dean Kagan abandoned in her argument in Citizens United, and (2) her thoughts on media like books and broadcasting, which also came up in Citizens United.

For those who love the Internet, who want it to remain a general-purpose technology and open tool for democratic participation, last night was a good night.

Net neutrality is a proposed FCC rule that would keep phone and cable companies from interfering with websites and technologies on the Internet.  Obama campaigned on the issue (using his strong support to help differentiate him from Clinton’s campaign), as did sixteen Senate candidates in 2008, and many prominent governors, Congressmen, etc. have voiced support.

Last night, two big supporters of net neutrality won their primaries.

Joe Sestak, who defeated Arlen Specter in the Pennsylvania primary, is strongly pro net neutrality.  In 2006, when he ran for Congress, he wrote a post on MyDD called “Why I Support Net Neutrality.” He said: “I’ve looked at the facts, weighed the evidence, and I strongly believe that Net Neutrality is good for America.”  In that post, he advocated for net neutrality primarily for our economy and our small businesses, and was also using the Internet to galvanize political participation (and raise money, directly from average individuals).

So is and Jack Conway, who won the Democratic primary in Kentucky for US Senate .  In this clip, he explains that he was troubled by the DC Circuit case reversing the FCC’s network neutrality order against Comcast, and discusses the political potential of the open Internet.

That was just my quick take…  If there are other pro-net neutrality candidates who won last night, let me know in comments.

So a big day for network neutrality.

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.