The U.S. Court of Appeals for the DC Circuit – the same Court that will hear Verizon’s suit against the FCC’s Net Neutrality order later this year – came out with a ruling last week which may bolster the claim that the FCC violated Verizon’s First Amendment rights through its Net Neutrality regulations.
In National Association of Manufacturers v. National Labor Relations Board, the Court tossed out a rule by the NLRB which made employers presumptively guilty of unfair labor practices simply by not displaying government posters informing workers of their rights.
Interestingly, a centerpiece of the Court’s reasoning hinges on the fact that the First Amendment protects speakers from government-compelled speech.
How does this apply to the upcoming Net Neutrality case?
Well, in operating its networks, Verizon avers it is a “speaker,” possessing editorial discretion akin to a newspaper. In its view (one I agree with), the Order – such as its no blocking and non-discrimination requirements – compels the network provider to take all (lawful) speech all the time, even speech it does not desire to have on its network. Moreover, it forbids the provider from favoring or differentiating its content and offerings over others’, essentially compelling a free, unlimited right of access by third-parties to speak over the company’s “modern day microphone.”
The following quotes were taken from the NLRB ruling. True – there are a number of other factors that will affect how the Court decides the case. That said, these excerpts provide some modest insight into how the Court might approach Verizon’s First Amendment claim:
- P. 17 – “The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it. First Amendment law acknowledges this apparent truth: ‘all speech inherently involves choices of what to say and what to leave unsaid.’”
- P. 17 – “Chief Justice Roberts, writing for a unanimous Court, put it this way in Rumsfeld v. Forum for Academic & Institutional Rights, Inc.: ‘Some of [the] Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.’”
- P. 17 – “As the Supreme Court put it in United States v. United Foods, Inc.: ‘Just as the First Amendment may prevent government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views…’”
- P. 18 – “The right against compelled speech is not, and cannot be, restricted to ideological messages.”
- P. 20 – “[E]ven in cases in which the message was other than one the government had devised, a ‘compelled-speech violation’ occurred when ‘the complaining speaker’s own message was affected by the speech it was forced to accommodate.’”
If the Court reaches the constitutional claim (which is not a given, as seen at 4:30 in this video), Verizon will succeed to the extent it can show it is more than merely a mute conduit; that it is in fact a “modern day microphone” – or certainly could be more of one – which has been forbidden from speaking as it sees fit, in its own fashion and at its own direction due to an FCC rule that cannot be constitutionally justified.
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