Verizon called hypocritical for equating net neutrality to censorship

"Can you hear me now?"

Aurich Lawson

Back in July, we covered Verizon's argument that network neutrality regulations violated the firm's First Amendment rights. In Verizon's view, slowing or blocking packets on a broadband network is little different from a newspaper editor choosing which articles to publish, and should enjoy the same constitutional protection.

Plenty of folks disagree with Verizon's view. On Thursday a number of public interest groups, academics, and former commissioners of the Federal Communications Commission filed amicus briefs taking issue with Verizon's constitutional argument. Verizon, they argued, was ignoring the fundamental distinction between Verizon's own speech and its role as a conduit for the speech of others.

Verizon clearly has First Amendment rights over content it publishes itself, the groups concede. The First Amendment does not apply, however, when Verizon is merely transmitting the content of third parties. Moreover, these groups point out, Verizon itself has disclaimed responsibility for its users' content when it was convenient to do so, making its free speech arguments ring hollow.

Verizon is in the middle of a legal fight against the open Internet rules the Federal Communications Commission adopted in 2010. In addition to arguing that Congress never gave the FCC authority to regulate network neutrality, Verizon also claimed that forcing Verizon to abide by network neutrality rules violated the firm's First Amendment right to free speech.

The courts have long held that the First Amendment limits the government's ability to require "fairness" in certain media. For example, the courts have said that the government cannot require newspaper publishers to print rebuttals to its editorials, nor can it force the organizer of a parade to allow floats that do not fit with the organizer's vision.

In July, Verizon told the United States Court of Appeals for the DC Circuit that the same logic applies to its own broadband network. In Verizon's view, blocking or throttling content is a constitutionally protected editorial decision. Some libertarian think tanks filed a brief backing Verizon's argument that same month. But on Thursday, three different amicus briefs were filed taking exception to Verizon's argument.

"Verizon and other broadband providers are more akin to telephone companies," argues a brief filed by the Center for Democracy and Technology and signed by a group of law professors. "Like the anti-discrimination obligations that apply to those companies, the Rules do not restrict or compel anyones speech but instead protect everyones speech by requiring that it be transmitted without interference."

CDT warns that accepting Verizon's argument would "call into question all of common carriage law, and threaten to give any actor with the physical or technical ability to block speechbe it a telephone company or FedExa First Amendment right to do so."

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Verizon called hypocritical for equating net neutrality to censorship