Verizon's Bizarre Constitutional Argument: Net Neutrality Rules Violate Its First & Fifth Amendment Rights?

from the um,-no... dept

Fri, Jul 6th 2012 1:18pm — Mike Masnick

Verizon is continuing to fight back against the FCC's (relatively weak) net neutrality rules with a few different arguments. It has one key argument that I think is a relatively strong one: which is that the FCC probably does not have a mandate to regulate in this way. That's something that Congress could conceivably change, but it certainly does look like the FCC tried to overstep its bounds in putting out the rules that it did. That said, Verizon goes even further to make some bizarre constitutional claims, including that net neutrality rules violates its free speech (First Amendment) rights, as well as its Fifth Amendment rights by "taking" its property. Neither Constitutional argument should hold up.

The First Amendment argument is based on the idea that this somehow blocks Verizon's ability to communicate its ideas:

The First Amendment protects not only traditional speakers, but other participants in the “communication of ideas.”... For example, it protects those transmitting the speech of others, and those who “exercis[e] editorial discretion” in selecting which speech to transmit and how to transmit it.... Broadband providers engage in and transmit speech, and the rules—which limit broadband providers’ own speech and compel carriage of others’ speech—cannot survive scrutiny.

Broadband providers transmit their own speech both by developing their own content and by partnering with other content providers and adopting that speech as their own. For example, they develop video services, which draw information from, and are then made available over, the Internet. Many also select or create content for their own over-the-top video services or offer applications that provide access to particular content. They also transmit the speech of others: each day millions of individuals use the Internet to promote their own opinions and ideas and to explore those of others, and broadband providers convey those communications.

In performing these functions, broadband providers possess “editorial discretion.” Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others. Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner... they nonetheless possess discretion that these rules preclude them from exercising. For example, they could distinguish their own content from that of other speakers or offer that capability to others. In fact, some types of speech, such as live streaming high-definition video, could benefit from (or may only be available with) differential treatment, such as prioritization. Broadband providers could also give differential pricing or priority access to their over-the-top video services or other applications they provide, or otherwise feature that content.... Indeed, the FCC’s concern that broadband providers will differentiate among various content presumes that they will exercise editorial discretion.

The Order’s broad “prophylactic rules” infringe broadband providers’ protected speech rights. They strip providers of control over which speech they transmit and how they transmit it, and they compel the carriage of others’ speech. They also limit the means by which providers can secure additional revenue, which impairs their ability to deploy new networks and capabilities (or to expand the size of existing ones), thereby limiting their ability to speak and deliver speech. And they make clear that even “specialized services,” such as video services, will be subject to the Order’s restrictions if the FCC decides that such services are “retarding the growth of ... broadband Internet access service,” or if broadband providers merely “advertis[e]” these services to consumers as “Internet” services, ... thus constraining their marketing speech as well.

This is, to put it mildly, a silly argument. Telling Verizon that it can't hinder certain services from working online is not a free speech issue. Verizon is both overclaiming its own abilities as an internet service provider and twisting the First Amendment in a bizarre way. As Stacey Higginbotham noted, this argument "ignores the fact that under net neutrality mandated non-discrimination Verizon’s packets and speech are just as likely to reach the end user as Netflix’s or Google’s." But it's even worse than that. Verizon is effectively arguing that if it chooses not to allow a certain service to exist online that is a form of expression. Think of it this way: say Verizon decided to block Skype, because Skype is eating into its local telephone business. According to Verizon, that decision is a form of expression and the government can't block that, since that "expression" is protected. The "newspaper" analogy that Verizon offers is completely specious, because the internet isn't a newspaper where there's a single publisher who chooses what goes in. The whole argument is ludicrous.

The second argument -- that this is somehow against the "takings clause" of the Fifth Amendment (blocking the government "taking" property without compensation) -- is equally bizarre. It involves Verizon claiming that the government would be "invading" its network and "taking" property without compensation:

The Order also violates the Fifth Amendment. It grants the equivalent of a permanent easement on private broadband networks for the use of others without just compensation—a per se taking.... “In essence,” edge providers “receive an unlimited, continuous right of access to broadband providers’ private property for free,” which “allows them to physically invade broadband networks with their electronic signals and permanently occupy portions of network capacity.” D. Lyons, Virtual Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation.... The resulting occupation is physical, for increases in network traffic consume available capacity and ultimately require the acquisition or construction of additional capacity.

Even without a physical occupation, the rules constitute a regulatory taking because they “interfere[] with [broadband providers’] distinct investment-backed expectations.”.... Providers have invested billions in broadband infrastructure on the understanding that they can manage access to network facilities and use those facilities to offer the products that their customers want. These rules sharply curb providers’ ability to do so, thereby frustrating their substantial and reasonable investment-backed expectations.

Once again, this argument seems disconnected from reality. Considering that much more aggressive "must carry" rules have been deemed Constitutional, it's hard to see how this argument makes any sense at all. Also, just from a common sense perspective, it fails on a few fronts. First, there's nothing being "taken" here. There is no "easement," just a restriction on how Verizon could run the network. If Verizon's argument here prevailed, you could potentially argue that any regulation that restricted how a company acted was a form of a "taking." But that's silly.

Even more to the point: while Verizon likes to go on and on about how these are its private networks that it spent so much time and money installing, what it conveniently leaves out are all of the massive government subsidies and rights-of-way that were provided. In some cases, Verizon received massive public gifts in terms of subsidies to build this network. One could easily make the argument that those entitle the government to place a few requirements on the network, considering that the network likely wouldn't exist without those subsidies and rights-of-way.

That said, I still agree that the FCC's mandate likely does not allow the kind of regulations it put forth here. But that doesn't make the Constitutional arguments any less silly.

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Filed Under: congress, fcc, fifth amendment, first amendment, net neutrality
Companies: verizon

35 Comments

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Mason Wheeler, 6 Jul 2012 @ 1:34pm

If Verizon's argument here prevailed, you could potentially argue that any regulation that restricted how a company acted was a form of a "taking." But that's silly.

Depends on who you're asking. To a reasonable person, yes, that's silly. But to a libertarian or other extremist corporatist, that's exactly the point.
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- Anonymous Coward, 6 Jul 2012 @ 2:25pm
  
  Re:
  Depends on who you're asking. To a reasonable person, yes, that's silly. But to a libertarian or other extremist corporatist, that's exactly the point.
  
  On the other side of that, libertarians believe that the regulations preventing competition in the ISP space is bad, and that with the proper competition the market would correct itself anyway.
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  - Mason Wheeler, 6 Jul 2012 @ 3:19pm
    
    Re: Re:
    ...despite a distinct lack of real-world examples of that ever actually happening. ;)
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- Anonymous Coward, 7 Jul 2012 @ 3:02am
  
  Re:
  All libertarians are extreme corporatists? Don't tell Ghandi, Jesus, or Nelson Mandela that. They may take offense.
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Anonymous Coward, 6 Jul 2012 @ 1:40pm

I hope these words come back to haunt them
In performing these functions, broadband providers possess �editorial discretion.� Just as a newspaper is entitled to decide which content to publish...Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner... they nonetheless possess discretion that these rules preclude them from exercising.

Wow. How benevolent of them.

(They now have one less potential customer.)
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Anonymous Coward, 6 Jul 2012 @ 1:40pm

"which impairs their ability to deploy new networks and capabilities"

haha like that'd ever happen.. with or without the rules.

didn't verizon recently halt all future fios builds?
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Anonymous Coward, 6 Jul 2012 @ 1:43pm

What?!?
people need to fight using the exact same arguments that are causing the people to lose their constitutional rights!

The 10 amendments are the rights of the people when "talking" to the federal government. These rights protect us from problems when we want to speak out against our elected or bought leaders, protect our property when they want to build a shopping mall on our property, and the rights to carry a loaded firearm.

Now they want to use the constitution to protect them ... from their competitors?

I propose we change the the 1st amendment to protect the people using free speech ... from debt collectors. I would like a world where I am free to express my ideas and beliefs. And I believe that my ideal room is at ikea, and that I should have it. Unfortunately, my free speech is stifled with debt collectors.

Furthermore...the 5th amendment? really guys? then take back your utility/private pipe running across my private property. The same private property that I pay taxes on, and don't have rights to because of utility easements.
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Anonymous Coward, 6 Jul 2012 @ 1:45pm

Stunningly nuanced discussion of the constitutional law issues, Mike. Congrats!
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- Anonymous Coward, 6 Jul 2012 @ 1:55pm
  
  Re:
  may the fleas of a thousand camels infest your armpits.
  [ link to this | view in chronology ]
  - Anonymous Coward, 6 Jul 2012 @ 2:07pm
    
    Re: Re:
    --Johnny Carson
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  - Anonymous Coward, 6 Jul 2012 @ 2:27pm
    
    Re: Re:
    may the fleas of a thousand camels infest your armpits.
    
    Let me fix that for you:
    
    May the fleas of a thousand camels infest your crotch, and your arms grow too short to scratch.
    [ link to this | view in chronology ]
    - Anonymous Coward, 6 Jul 2012 @ 2:37pm
      
      Re: Re: Re:
      arguing with trolls online is alot like the Special Olympics, fun to watch, but the retard always wins.
      
      congrats on your win, retard.
      [ link to this | view in chronology ]
  - Anonymous Coward, 8 Jul 2012 @ 7:10am
    
    Re: Re:
    LOL! The whole argument went over his head. There's no discussion of which First Amendment test applies, whether the statute passes that test, the applicability of Turner, etc. It's just typical backwards-thinking from Pirate Mikey. Yaaaar!
    [ link to this | view in chronology ]
VMax, 6 Jul 2012 @ 1:52pm

Eavesdropping?
For the ISP to determine and "exercise editorial discretion", wouldn't they have to listen in, as it were, to the conversation? I thought we had laws against that.
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- Cynyr (profile), 6 Jul 2012 @ 6:41pm
  
  Re: Eavesdropping?
  not only that but if they are listining in, don't they lose common carrier protections? and are therefore liable for the content on thier networks, things like thepiratbay.org/infringed_on_movies/. etc?
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- Anonymous Coward, 13 Jul 2012 @ 4:26am
  
  Re: Eavesdropping?
  ALL email and phone communication is routinely recorded stored and decrypted beginning approx 2006 in this country.
  
  http://www.wired.com/threatlevel/2012/03/ff_nsadatacenter/all/1
  
  https://www.youtube.c om/watch?v=qy3eOCkLVaw
  
  https://www.youtube.com/watch?v=v6o792T2XNM
  
  https://www.youtube.com/wat ch?v=e9WStvRc0rQ
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Chronno S. Trigger (profile), 6 Jul 2012 @ 1:53pm

First Amendment
I will only accept that it's a violation of their free speech rights just as soon as they admit what that speech means. The second the words "'F**k you, customers' is what we're trying to say" comes out of their mouths, I'll fight for their right to say it.

I will also fight (and advocate) for everyone else's right to say "F**k you too, Verizon."

I would also argue that since Verizon is getting government money and a government granted monopoly, they should be bound by government rules. They should not be allowed to limit my free speech by throttling or blocking anything.
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- The eejit (profile), 6 Jul 2012 @ 1:57pm
  
  Re: First Amendment
  no, if that's a First Amendment violation, then it's a First Amendment violation to disconnect me for overage. Same logic.
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  - DH's Love Child (profile), 6 Jul 2012 @ 2:01pm
    
    Re: Re: First Amendment
    Except, of course, the First amendment wouldn't apply since Verizon is not an agent of the government... sigh...
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    - The eejit (profile), 6 Jul 2012 @ 2:49pm
      
      Re: Re: Re: First Amendment
      Consider this:
      
      1) government-mandated monopoly by cableco;
      2) cableco cuts me off for overage;
      3) can't speak online
      
      Therefore, indirectly, the government is mandating your silence. Ergo, 1st Amendment violation.
      
      That's precisely the argument Verizon is making.
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    - Hephaestus (profile), 6 Jul 2012 @ 3:07pm
      
      Re: Re: Re: First Amendment
      Actually you could probably argue after the NSA spying equipment, the push by the white house for six strikes, and several other similar events, that they are acting as agents of the government.
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  - Chronno S. Trigger (profile), 6 Jul 2012 @ 2:12pm
    
    Re: Re: First Amendment
    If we're going that far, the data cap itself would be in violation, should never be allowed to get to the disconnect part. However, disconnecting someone for not paying the bill would not be a violation.
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Loki, 6 Jul 2012 @ 2:38pm

Before I'm even willing to listen to these silly arguments, they first have to do (at the very least):

1) Pay back the subsidies and tax breaks they've been granted since they've been in business (if they are going to accept government money, then they can expect some restrictions along with the money).

2) Relinquish any "right-of-ways" agreements they've been granted (again, if they want special perks, they can afford to adhere to certain restrictions for those perks).

3) Provide a detailed accounting of the Universal Service Fund, or refund any money they can't accurately account for.

Once they agree to that (which they most certainly never will), then, and only then, will I listen to their silly arguments.
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Bengie, 6 Jul 2012 @ 3:00pm

If they want "fair"
I say we give them what they want, but they should be forced to pay back the tens of billions of tax payer money plus interest, and they can no longer use public land.
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- Anonymous Coward, 6 Jul 2012 @ 5:16pm
  
  Re: If they want "fair"
  Force the money. They should have tolls for both public and private land.
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chilehead (profile), 6 Jul 2012 @ 3:12pm

publishing?
The ISPs are not publishers any more than cab drivers are manufacturers of human beings. Sure, people are constantly observed getting out of cabs, but they also get into cabs somewhere else. The Fed Ex trucks that deliver books to bookstores are not the publishers, they are carriers that are hired to deliver what the publishers have produced. ISPs do not create any of the content being conveyed, so there is no way that they can be considered "publishers". If they want editorial control, they need to assume legal responsibility for each and every packet that crosses their network - in terms of malware, slander, libel, threats of violence, child pornography, breach of trade secrets, and hurtful gossip.

How exactly is inhibiting other people's speech a form of free speech on their part? Does the USPS, FedEx, or UPS reserve the right to open the packages they carry and change their prices and amount of time for delivering the packages based on the message content, or based on the recipient's or sender's name or income level? Ones and zeroes are the same to the pipe-monger regardless of who the sender or recipient are and how much money they have: their job is simply to carry them from one to the other.

This is simply the telcos and cable monopolies wanting to get paid more for delivering mail to rich folks, and to get paid twice for each delivery. It's time to end their legal monopolies once and for all.
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- abc gum, 7 Jul 2012 @ 6:32am
  
  Re: publishing?
  "ISPs are not publishers any more than cab drivers are manufacturers of human beings"
  
  I like this analogy, and bonus points for including an automobile. I would like to add that if they were indeed publishing anything at all then they would also be required to purchase copyrights - no?
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bsod, 6 Jul 2012 @ 3:17pm

verizon
if people had a choice, in a competitive market place with more than one ISP per area; would they be choosing these companies who go into court and argue that the government is the only thing preventing them from screwing their customers over
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Androgynous Cowherd, 6 Jul 2012 @ 3:35pm

Verizon said:

The Order�s broad �prophylactic rules� infringe broadband providers� protected speech rights. They strip providers of control over which speech they transmit and how they transmit it, and they compel the carriage of others� speech.

Yes, but you're a telephone company, not a newspaper. Telephone companies don't get to exercise "editorial discretion" over which calls they carry and which they don't and what people can talk about in their phone calls.

They also limit the means by which providers can secure additional revenue, which impairs their ability to deploy new networks and capabilities (or to expand the size of existing ones), thereby limiting their ability to speak and deliver speech.

Hey, government: having to pay my Verizon phone bill shortly after payday every month limits the means by which I can secure additional revenue, which impairs my ability to deploy new networks and capabilities, thereby limiting my ability to speak and deliver speech, say, by saving up the extra money and renting a conference center room. Can you exempt me from my phone bill please?

And they make clear that even �specialized services,� such as video services, will be subject to the Order�s restrictions if the FCC decides that such services are �retarding the growth of ... broadband Internet access service,� or if broadband providers merely �advertis[e]� these services to consumers as �Internet� services, ... thus constraining their marketing speech as well.

Truth in advertising laws also constrain your marketing speech, yet are Constitutional.

For example, they could distinguish their own content from that of other speakers or offer that capability to others. In fact, some types of speech, such as live streaming high-definition video, could benefit from (or may only be available with) differential treatment, such as prioritization. Broadband providers could also give differential pricing or priority access to their over-the-top video services or other applications they provide, or otherwise feature that content....

Omigod! The FCC is guilty of felony interference with a business model! Someone call the cops! *snicker*

�In essence,� edge providers �receive an unlimited, continuous right of access to broadband providers� private property for free,�

What? I have an unlimited, continuous right of access to broadband providers' network for free? And here I thought I was paying $60 a month and capped at 30GB a month of traffic? I need to reread my next Verizon bill. And dispute it if it is charging me more than $0 for my broadband, citing the above as a newly-posted sale price for said broadband and relevant sales law in my state.

The resulting occupation is physical, for increases in network traffic consume available capacity and ultimately require the acquisition or construction of additional capacity.

What, demand for your product is rising and you may need to increase your manufacturing capacity? Oh, cry me a river. Most industries would envy your position, in this stagnant economy!

Providers have invested billions in broadband infrastructure on the understanding that they can manage access to network facilities and use those facilities to offer the products that their customers want. These rules sharply curb providers� ability to do so, thereby frustrating their substantial and reasonable investment-backed expectations.

Federal Communications Commission, you are under arrest for felony interference with a business model. You have the right to remain silent...
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Martin, 6 Jul 2012 @ 3:44pm

Christopher Yoo wrote a full article supporting this position a couple of years ago: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1475382
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Andrew F (profile), 6 Jul 2012 @ 4:39pm

Citizens United
The current Supreme Court seems to take a fairly broad view of the First Amendment -- e.g. Citizens United -- so I wouldn't be too surprised if the argument got upheld.

To take it to an extreme, Verizon's argument is this: Imagine I own a billboard, which I permit Democrats to put ads on, but not Republicans. Net neutrality is like the government mandating that I have to host Republican ads as well. That seems to raise something of a First Amendment concern.

Obviously, the distinction is that Verizon is making "expressive choices" based on commercial rather than political concerns, but Citizens United makes that line a little murkier than it used to be.

The government subsidy argument is interesting, but I'm not sure how far it'll go. One of the arguments being advanced against Citizens United was that states had the right to regulate corporate speech as a condition of the "subsidy" corporations get in terms of limited liability, favorable tax treatment, etc. That argument didn't quite work out.
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- abc gum, 7 Jul 2012 @ 6:36am
  
  Re: Citizens United
  "Imagine I own a billboard, which I permit Democrats to put ads on, but not Republicans"
  
  Who paid for construction of said billboard and upon whose land does it reside?
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abc gum, 6 Jul 2012 @ 6:51pm

Corporations are not people. Most sane people can determine this fact all on their own. The bill of rights defines some of the rights of individuals, there is no reference to corporations.

The citizens united decision was possibly the worst to ever come out of the SCOTUS. This is obvious even to the most casual observer.
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A Guy (profile), 7 Jul 2012 @ 3:08am

Well, even ridiculous people can hire lawyers. I'm sure it will get laughed out of court soon enough.
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gilroy0 (profile), 7 Jul 2012 @ 5:36am

We have a winner!
>> If Verizon's argument here prevailed, you could potentially argue that any regulation that restricted how a company acted was a form of a "taking." But that's silly.

This, of course, is the end game for the corporations that are in the process of buying our government.
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