For Whom the First Amendment Matters

Image: Backbone Campaign

Earlier this year, the Newseum Institute asked 1,000 Americans to name their rights under the First Amendment. A clear majority listed freedom of speech first — before freedom of religion, assembly and other core civil liberties.

And that makes sense. Protecting free speech is essential to the health of any functioning democracy.

Free speech matters to the hundreds of millions of Internet users who exercise this right every time they connect with others online. But if you ask some of the lawyers working for the companies that sell you Internet access, they’ll insist that it’s more important to protect the free speech rights of phone and cable giants like AT&T, Comcast and Verizon. In a convoluted twist, they argue that the First Amendment gives these same companies the right to block, throttle and degrade the communications of everyone using their services.

Did you get that? The First Amendment gives Comcast the right to censor you.

We owe this Orwellian shift in thinking to a growing number of court decisions, among them Citizens United, that define corporations as people and their business practices as speech.

Harvard Law School’s John C. Coates documents this change in a study released last February, noting that “corporations have begun to displace individuals as the direct beneficiaries of the First Amendment.” It’s a trend Coates describes as “bad law and bad politics” and “increasingly bad for business and society.”

It was only a matter of time before Internet service providers (ISPs) decided to get in on this dangerous game.

In February, they lost a monumental battle when the Federal Communications Commission adopted strong Net Neutrality protections that prevent providers from blocking or slowing down online traffic and services. By summer, their legal teams had filed 10 lawsuits against the FCC’s ruling to undermine the protections it extends to Internet users.

“Broadband providers are First Amendment speakers,” reads a brief filed by one of these ISPs. The new FCC rules, that brief claims, “strip providers of control over which speech they transmit and how they transmit it.”

When it sued the FCC over a previous version of Net Neutrality rules, Verizon’s lawyers explained this position in more detail. “Broadband providers possess ‘editorial discretion’,” they claimed. “Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others.”

Not quite. ISPs aren’t like newspaper editors (a long list of prominent First Amendment scholars agree). Their services merely transmit our speech. Acting as a conduit for our messages isn’t the same as engaging in free expression.

“Whether it’s a phone call, a text, an email, a webpage request, or a video stream the carrier transmits, making that delivery isn’t an editorial function,” notes Free Press Policy Director Matt Wood.

Indeed. The framers of the Constitution couldn’t have foreseen a time in which technology allowed more than 2.7 billion people to communicate worldwide via interconnected digital platforms. It’s an exponential growth of speech that’s without precedent — one that requires that we’re clear on who the real speakers are.

As the court case against the FCC’s Net Neutrality rules rages in the courts, the First Amendment should not be used to take communication rights away from the very people it was designed to protect.