AT&T Argues Net Neutrality Violates Its First Amendment Rights

from the up-is-down,-black-is-white dept

Tue, May 26th 2015 10:42am — Karl Bode

Back when Verizon sued to overturn the FCC's 2010 net neutrality rules, the telco argued that the FCC was aggressively and capriciously violating the company's First and Fifth Amendment rights. According to Verizon's argument at the time, broadband networks "are the modern-day microphone by which their owners engage in First Amendment speech." Verizon also tried to claim that neutrality rules were a sort of "permanent easement on private broadband networks for the use of others without just compensation," and thereby violated the Fifth Amendment.

Granted, any well-caffeinated lawyer in a nice pair of tap dancing shoes can effectively argue anything, though in this case you'd obviously have to operate in a vacuum and ignore the history, context and definition of net neutrality to fully do so. Regardless, Verizon did manage to have those original, flimsy rules thrown out, but it had nothing to do with the telco's Constitutional arguments. Verizon won because the FCC was trying to impose common carrier rules on ISPs without first declaring them as common carriers under Title II of the Communications Act, something the FCC tried to remedy with the latest rule incarnation.

Fast forward to 2015. AT&T's busy suing the FCC both as part of USTelecom, but also with a standalone lawsuit of its own. In a statement of issues (pdf) outlining its legal assault on the FCC's net neutrality rules, AT&T makes it clear that it too will try to claim the FCC is violating the company's First and Fifth Amendment rights:

"In a statement of issues that AT&T intends to raise when the case moves further into the court process, the company said last week that it plans on challenging whether the FCC’s net neutrality order "violates the terms of the Communications Act of 1934, as amended, and the First and Fifth Amendments to the US Constitution." The First and Fifth Amendment will be used to attack the FCC's decision to reclassify both fixed and mobile broadband as common carrier services, as well as the FCC's assertion of authority over how ISPs interconnect with other networks."

CenturyLink, wireless carriers (the CTIA) and major telcos (USTelecom) have stated they plan to argue the same point, though the precise legal approach obviously isn't being disclosed yet. Basically, AT&T and friends are throwing every legal claim they can possibly think of at the wall and hoping something sticks.

Leaning on the First Amendment when it's convenient has long been a telecom lawyer mainstay, logic be damned. Verizon tried to argue that its participation in the government's domestic surveillance efforts was protected by the First Amendment. Comcast has tried to argue that its right to bar competitors' TV channels from its lineup is similarly protected by the First Amendment. Charter Communications has hinted it believes its First Amendment rights mean it doesn't have to adhere to municipal franchise contracts. Of course, those of us here on planet Earth realize net neutrality is intended to protect the free speech rights of consumers and small business owners from the incumbent ISPs, and the only concept truly being explored here is irony.

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Filed Under: fcc, first amendment, free speech, net neutrality
Companies: at&t

28 Comments

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Anonymous Coward, 26 May 2015 @ 10:54am

Doesn't AT&T know that the constitution does not matter in this country... I mean they are helping destroy it as we speak.

You helped break the fourth and now you are twisting the first to achieve your commercial interests. Typical hypocritical mindset that is set by the tone at the top of our "civilized?" society.
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Anonymous Coward, 26 May 2015 @ 10:57am

I see, to protect a companies first amendment rights, they should be allowed to trample on everybody else's.
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DB (profile), 26 May 2015 @ 11:14am

The government granted these companies an operating monopoly. Now they want both the government-granted monopoly and freedom from government-imposed rules that went with that monopoly.
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DigDug, 26 May 2015 @ 11:19am

Funny thing about that argument...
It's when they, the big internet backbone companies, mess with client's internet traffic, they really are messing with people's first amendment rights by delaying, modifying, blocking their conversations.

Peoples right to freedom of speech end when they abridge other's rights, and traffic shaping, limiting, etc are all abridgement of the content providers and content consumers rights.
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HMTKSteve, 26 May 2015 @ 11:22am

first amendment
The first amendment covers speech not microphones. Or to put it more simply, the first amendment allows for freedom of speech but it does not require the government to give you a microphone so that your speech can be heard.

In this particular instance the government has an interest in regulating the microphones.
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DannyB (profile), 26 May 2015 @ 11:23am

Net Neutrality DOES violate AT&T's 1st amendment right
The 1st Amendment guarantees people* such as AT&T* corporation* the freedom of religious belief without interference from the government.

AT&T should have the freedom to worship their god (money) and practice their religion (greed, screwing consumers) without the government prohibiting the free exercise of religion. Net Neutrality would constitute government interference with both Greed and Screwing Consumers. Persons* such as AT&T* should not be deprived of the joy that their religion brings into their life, as evidenced by their evil laughter at the misery and expense of others.

It's right there in the 1st amendment.

* Corporations are people too
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DannyB (profile), 26 May 2015 @ 11:26am

I must be interpreting this correctly.

AT&T could not possibly be concerned about 1st amendment freedom of speech issues. So it must be a concern about religious practice.

Free Speech is about saying something, not about preventing others from saying things, or regulating the flow of others' speech.
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John Fenderson (profile), 26 May 2015 @ 11:28am

Sounds about right
So the telecoms are arguing that it's a violation of their first amendment rights to have regulations about how they handle data that they didn't produce and have no rights over?

That sounds about right. And they wonder why everyone hates the telecoms...
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Anonymous Coward, 26 May 2015 @ 11:47am

Things like this are why some of the most radical consumer advocates think we should abolish corporations altogether as a legal entity.

Because corporations like AT&T try to use things like the constitution to let them screw everyone else over. Not to mention Citizen's United, ruling that 1st amendment rights lets corporations spend unlimited amounts of money to influence elections, something that was outlawed over 100 years ago because of the corruption it caused.

Stories like this make ideas like that start to seem quite rational.
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mooper, 26 May 2015 @ 11:48am

Here is a brilliant idea, and will solve issues of corporations being legal people... You are only a legal person who has right such as the first one if you are able to be put in jail. As ATT&T can't be put in jail it has no 1st amendment protections. Problem solved and many other problems solved also
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Anonymous Coward, 26 May 2015 @ 11:59am

Re:
Ultimate free speech is censorship for everyone else.

The borders between "right to" and "freedom from" are subjective.
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Anonymous Coward, 26 May 2015 @ 12:33pm

Re:
AT&T: the wiretapping was only illegal at the time

BTW: look out when they start enforcing the 2nd and we have an army of $$ seeking executives shaking down neighborhoods
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JR, 26 May 2015 @ 12:48pm

They are not a person
The bill of rights was written for the people. Corps only exist because the people allow them to exist. I can't find the quote right now, but in some past court case it was said that right to complete free speech is so important to people that elevating corps to that same level dilutes the right for people.
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Anonymous Anonymous Coward, 26 May 2015 @ 1:00pm

Hilarity Ensues
Dear Telco Attorney's,

Dance faster and with more oomph!

People who have camera's and Internet connections*

*Would these videos be better on YouTube, Vimeo or some other?
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Almost Anonymous (profile), 26 May 2015 @ 1:39pm

Re: Net Neutrality DOES violate AT&T's 1st amendment right
Yeah, exactly. Yet more fallout from the preposterous notion that corporations have constitutional rights. Thanks SCOTUS!
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Anonymous Coward, 26 May 2015 @ 1:43pm

ok. The people own the bandwidth and just lease the bandwidth to the telcos etc. so change the agreement to make it a condition that wireless is under title two.

Sure something similar can be done with the cable connections as well.... and stop any and all subsidies until they agree
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Anonymous Coward, 26 May 2015 @ 2:17pm

AT&T is not a person, ergo it cannot have its First Amendment rights infringed.
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Geoffrey, 26 May 2015 @ 4:35pm

I'm now worried about corporate Second Amendment right.
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Padpaw (profile), 26 May 2015 @ 4:42pm

Why don't they just say net neutrality promotes terrorism.

That usually fires people up. If their plan is to try everything use that. That should get them laughed out of court all the sooner.
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nasch (profile), 26 May 2015 @ 4:49pm

Re:
Things like this are why some of the most radical consumer advocates think we should abolish corporations altogether as a legal entity.

The problem with that is you're left with personal liability for businesses, which makes it very unappealing to start a business. That's not a good incentive structure to set up since despite all the stupid political rhetoric, small businesses actually are quite important.
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upcoming (profile), 26 May 2015 @ 10:21pm

Corporate power is the root issue here.
In fact it is the root issue of a host of serious problems in the US and the world. The fantasy of corporate existence needs to be exploded. The game has gone too far. The US was founded in reaction against corporate tyranny. And here we are two plus centuries later unable, so far, to halt corporate tyranny. Should we take from this that an armed revolution is required to end corporate tyranny? History would suggest so.

A completely new chapter in the corporate fantasy must be written. In it corporations have the power and influence they held right after the American revolution. That is, a charter granted by the people, through government, for a specific defined purpose only and a limited duration, and that done grudgingly with skepticism about abuses against the citizenry. Only this time it is done without violence. A completely heartening chapter that shows some character development in humanity.
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PaulT (profile), 27 May 2015 @ 3:18am

Re: first amendment
"In this particular instance the government has an interest in regulating the microphones...."

...in order to prevent private organisations from leveraging their monopoly to allow free speech only to those who pay them a high enough fee, a model they have already proven will happen if no external force stops them (free market not being applicable since most people in the US have very little choice about providers).

FTFY, you missed one of the most important elements.
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fgoodwin (profile), 27 May 2015 @ 6:51am

Re: They are not a person
@JR: The First Amendment also protects freedom of the press, right?

Are you saying that the free press clause of the First Amendment does not apply to the New York Times? Because the New York Times is a corporation (and a pretty big one at that).

If you agree that the New York Times has freedom of the press, then you must also agree that the First Amendment applies to corporations.
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Anonymous Coward, 27 May 2015 @ 9:05am

Re: Re: They are not a person
The New York Times is composed of people who have freedom of the press. The same way that other corporations are composed of people who have freedom of religion and speech. The organization doesn't need protection for its freedom of the press because the individuals have it. The New York Times is the expression of freedom of the press of the human beings who compose it.
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John Fenderson (profile), 27 May 2015 @ 9:56am

Re: Re: They are not a person
"If you agree that the New York Times has freedom of the press, then you must also agree that the First Amendment applies to corporations"

I disagree.

Corporations are legal fictions -- inventions of the government -- and what "rights" they have are exactly what "rights" the government decides to give them. It is entirely possible and reasonable to give some limited right to free expression to them that doesn't go as far as the first amendment.
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Ron, 27 May 2015 @ 6:01pm

Net Neutrality
ATT, telecommunication, and cable companies will continue attacking Net Neutrality until they reach their ultimate objective - make the internet like long distance or cable channel packaging tiered pricing schema. They want to be able to charge web sites different prices for publishing their web sites to different regions around the world(like they did with long distance phone calls); like wise, they want to charge internet users the same tiered pricing - you want to access Europe - one price, China - another price, South America - another price.
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Bergman (profile), 27 May 2015 @ 6:13pm

Re: Funny thing about that argument...
It's even better, when you consider that the lack of editorial control over the network is what gives them safe harbors against lawsuits over third party content.

If the data flowing across AT&T's network is AT&T's speech, then they are liable for it.
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Can You See Me Bending Over And Dropping My Shorts, 27 May 2015 @ 6:17pm

Get On the Bus
I would never give my seat up to a corporation claiming to be an elderly person with gout and arthritus in their knees just because they claim to be a person. That sure in hell doesn't make them one. The US Constitution was written by people looking to protect the common citizen from entities such as these greedy corporations "that" have no problem stealing food off your table meant to feed your kids or they threaten to turn off your lights, shut off your heat, cancel your insurance, repossess your car, or kick you out of your home and then write all the worst stuff and publish it with a credit reporting agency for all their buddies to read.
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