ORAL ARGUMENT SCHEDULED FOR DECEMBER 4, 2015 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ______________________ No. 15-1063 (and consolidated cases) ______________________ UNITED STATES TELECOM ASSOCIATION, et al. Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents, ______________________ On Petitions for Review of an Order of the Federal Communications Commission ______________________ BRIEF OF FIRST AMENDMENT SCHOLARS AS AMICI CURIAE IN SUPPORT OF RESPONDENTS ______________________ September 21, 2015 GREGORY A. BECK 3504 Woodridge Ave. Silver Spring, MD 20902 (202) 684.6339 gregory.beck@gmail.com Counsel for Amici Curiae USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 1 of 29 i CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici Except for the following, all parties, intervenors, and amici appearing in this Court are listed in the brief for Petitioners United States Telecom Association, National Cable &Telecommunications Association, CTIA – The Wireless Association®, American Cable Association, Wireless Internet Service Providers Association, AT&T Inc., and CenturyLink. The following parties have filed a notice or motion for leave to participate as amici as of the date of this filing: •   Harold Furchtgott-Roth •   Washington Legal Foundation •   Consumers Union •   Competitive Enterprise Institute •   American Library Association •   Richard Bennett •   Association of College and Research Libraries •   Business Roundtable •   Association of Research Libraries •   Center for Boundless Innovation in Technology •   Officers of State Library Agencies •   Chamber of Commerce of the United States of America •   Open Internet Civil Rights Coalition •   Georgetown Center for Business and Public Policy •   Electronic Frontier Foundation •   International Center for Law and Economics and Affiliated Scholars •   American Civil Liberties Union •   William J. Kirsch •   Computer & Communications Industry Association •   Mobile Future USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 2 of 29 ii •   Mozilla •   Multicultural Media, Telecom and Internet Council •   Engine Advocacy •   National Association of Manufacturers •   Phoenix Center for Advanced Legal and Economic Public Policy Studies •   Dwolla, Inc. •   Telecommunications Industry Association •   Our Film Festival, Inc. •   Christopher Seung-gil Yoo •   Foursquare Labs, Inc. •   General Assembly Space, Inc. •   Github, Inc. •   Imgur, Inc. •   Keen Labs, Inc. •   Mapbox, Inc. •   Shapeways, Inc. •   Automattic, Inc. •   A Medium Corporation •   Reddit, Inc. •   Squarespace, Inc. •   Twitter, Inc. •   Yelp, Inc. •   Media Alliance •   Broadband Institute of California •   Broadband Regulatory Clinic •   Tim Wu •   Edward J. Markey •   Anna Eshoo •   Professors of Administrative Law •   Sascha Meinrath •   Zephyr Teachout •   Internet Users USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 3 of 29 iii B. Rulings Under Review The ruling under review is the FCC’s Protecting and Promoting the Open Internet, Report and Order on Remand, Declaratory Ruling, and Order, 30 FCC Rcd. 5601 (2015) (“Order”). C. Related Cases The FCC’s Order has not previously been the subject of a petition for review by this Court or any other court. All petitions for review of the Order have been consolidated in this Court, and amici are unaware of any other related cases pending before this Court or any other court. USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 4 of 29 iv CERTIFICATE REGARDING AUTHORITY TO FILE AND SEPARATE BRIEFING Amici curiae filed a motion for leave to participate on September 21, 2015. Pursuant to D.C. Circuit Rule 29(d), amici curiae certify that they are submitting a separate brief from other amici because of the specialized nature of each amicus’s distinct interests and expertise. Amici are scholars and teachers of the First Amendment and its intersection with Internet and communications law. In submitting this brief, they draw upon their academic expertise to articulate and defend the position that the Federal Communications Commission’s Open Internet Rules do not trigger heightened scrutiny under the First Amendment. Amici anticipate an amicus brief on behalf of former FCC Commissioners including Reed Hundt and Michael Copps that will in part address the First Amendment issues raised by the FCC’s rules. That brief will also address the impact of heightened scrutiny on the broader scheme of common carriage regulation, a topic that amici do not address. As former government officials, moreover, the Commissioners have interests distinct from academic scholars of the First Amendment and their views have been shaped by different experiences. Given these divergent interests, amici certify that filing a joint brief would not be practicable. /s/Gregory A. Beck Gregory A. Beck USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 5 of 29 v TABLE OF CONTENTS Page CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............. i CERTIFICATE REGARDING AUTHORITY TO FILE AND SEPARATE BRIEFING ................................................................................ iv TABLE OF AUTHORITIES ................................................................................... vi GLOSSARY ............................................................................................................ ix STATUTES AND REGULATIONS ........................................................................ 1 IDENTITY AND INTEREST OF AMICI CURIAE ................................................ 1 ARGUMENT ............................................................................................................ 2 I. THE OPEN INTERNET RULES DO NOT REGULATE BROADBAND INTERNET ACCESS SERVICE PROVIDERS AS SPEAKERS .................................................................................................... 2 II. THE OPEN INTERNET RULES DO NOT COMPEL SPEECH .................. 7 III. COMMON CARRIAGE REGULATIONS LIKE THE OPEN INTERNET RULES ARE NOT AND SHOULD NOT BE SUBJECT TO FIRST AMENDMENT SCRUTINY ..................................................... 12 CONCLUSION ....................................................................................................... 15 APPENDIX ............................................................................................................. 16 CERTIFICATE OF COMPLIANCE ...................................................................... 18 CERTIFICATE OF SERVICE ............................................................................... 19 USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 6 of 29 vi TABLE OF AUTHORITIES Page(s) CASES American Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014) ........................................................................ 12 FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984) ..................................................................................... 13 Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996) ............................................................................... 10, 13 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) ....................................................................................... 8 Los Angeles v. Preferred Commnc’ns, Inc., 476 U.S. 488 (1986) ..................................................................................... 10 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) ....................................................................................... 9 Nat’l Assn. of Mfrs. v. SEC, No. 13-5252, 2015 WL 5089667 (D.C. Cir. Aug. 18, 2015) ........................ 11 PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) ......................................................................................... 5 Reno v. ACLU, 521 U.S. 844 (1997) ..................................................................................... 14 *Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006)(FAIR) .......................................................................... 7, 8 Sable Communications v. FCC, 492 U.S. 115 (1989) ............................................................................... 13, 14 * Authorities upon which we chiefly rely are marked with asterisks. USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 7 of 29 vii *Spence v. Washington, 418 U.S. 405 (1974) ................................................................................... 3, 7 *Texas v. Johnson, 491 U.S. 397 (1989) ................................................................................... 3, 7 Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622 (1994) .......................................................................................... 9 *Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) ...................................................................... 12 Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) ..................................................................................... 11 STATUTES 47 U.S.C. § 153(50) .................................................................................................. 3 47 U.S.C. § 153(51) ................................................................................................ 12 ADMINISTRATIVE MATERIALS Order: Report and Order on Remand, Declaratory Ruling, and Order, Protecting and Promoting the Open Internet, 30 FCC Rcd 5601 (2015) .................................................................... 2, 12, 14 MISCELLANEOUS Alamo Broadband, Inc. Terms and Conditions http://www.alamobroadband.com/?page_id=277 (last visited Sept. 21, 2015) ............................................................................ 4 USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 8 of 29 viii Nicholas Bramble, Ill Telecommunications: How Internet Infrastructure Providers Lose First Amendment Protection, 17 Mich. Telecomm. & Tech. L. Rev. 67 (2010) ........................................... 6 Brief for Appellant, Recording Indus. Ass’n of Am. v. Verizon Internet Serv., 351 F.3d 1229 (D.C. Cir. 2003) (Nos. 03-7015 & 03-7053) .......................... 4 Rob Frieden, Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits, 12 U. Pa. J. Const. L. 1279 (2010) ................................................................. 4 Stuart Minor Benjamin, Transmitting, Editing, and Communicating: Determining What “The Freedom of Speech” Encompasses, 60 Duke L.J. 1673 (2011) ............................................................................. 13 Rebecca Tushnet, Power Without Responsibility: Intermediaries and the First Amendment, 76 Geo. Wash. L. Rev. 986 (2008) .................... 13 Verizon Online Terms of Service http://www.verizon.com/idc/groups/public/documents/adacct/version_15-1_internet_tos.pdf (last visited Sept. 21, 2015) .............................................. 3 USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 9 of 29 ix GLOSSARY Order Report and Order on Remand, Declaratory Ruling, and Order, Protecting and Promoting the Open Internet, 30 FCC Rcd 5601 (2015) (JA__-__) USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 10 of 29 1 STATUTES AND REGULATIONS All applicable statutes and regulations are contained in the Joint Brief for Petitioners USTelecom, NCTA, CTIA, ACA, WISPA, AT&T, and CenturyLink and the Brief for Respondents. IDENTITY AND INTEREST OF AMICI CURIAE1 Amici are scholars of law and communication who write and teach about the First Amendment and its intersection with Internet and communications law, and who have a shared interest in preserving a neutral and open Internet.2 Several amici have testified on questions related to this proceeding before the FCC and Congress. Amici are deeply concerned about the role that the First Amendment plays in supporting and sustaining free speech and innovation in the modern technological environment. They submit this brief to articulate from a scholarly perspective their view of the proper reach of the First Amendment with respect to rules that encourage openness and nondiscrimination in the provision of Internet service. 1 Pursuant to Fed. R. App. P. 29(c), amici curiae state that no counsel for a party authored this brief in whole or in part, and no person other than amici curiae or their counsel made a monetary contribution to the preparation and filing of this brief. 2 A complete list of amici is provided in the Appendix. USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 11 of 29 2 ARGUMENT The Open Internet Rules are not subject to scrutiny under the First Amendment because they do not regulate any person’s speech. Broadband Internet access service, as the Commission found, is “service . . . that provides the capability to transmit data to and receive data from all . . . Internet endpoints.” Order ¶ 187 (JA__). That service provides a conduit for speech, and broadband Internet access service providers transmit others’ speech through that conduit. The Open Internet Rules regulate the conduct of those service providers. They cannot block or throttle lawful content, id. ¶¶ 112, 119 (JA__, __), cannot charge for prioritization of some content over other, id. ¶ 125 (JA__), and must not unreasonably interfere with content transmission, id. ¶ 136 (JA__). The providers’ conduct is not speech that is restricted or compelled by the rules. Indeed, the Open Internet Rules are an instance of common carrier regulation, which is not and ought not to be subject to heightened First Amendment scrutiny. I. THE OPEN INTERNET RULES DO NOT REGULATE BROADBAND INTERNET ACCESS SERVICE PROVIDERS AS SPEAKERS Broadband Internet access providers do not act as speakers when they transmit the speech of others. The Supreme Court has held that conduct is protected by the First Amendment only when it is expressive: “In deciding whether particular conduct possesses sufficient communicative elements to bring USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 12 of 29 3 the First Amendment into play,” the Court has “asked whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)) (internal quotation marks and alterations omitted). Broadband Internet access service providers’ conduct as conduits for others’ speech fails this test. First, providers do not intend to convey any message through the transmission of others’ content. As a telecommunications service, broadband Internet access service is solely “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information.” 47 U.S.C. § 153(50). The providers have nothing to do with the form or content of the information that others choose to send or receive. Indeed, they expressly disclaim any endorsement of such content. To take one example, Verizon’s broadband Internet terms of service provide that “Verizon assumes no responsibility for the accuracy, integrity, quality, completeness, usefulness, or value of any Content, advice or opinions contained in any emails, message boards, chat rooms or community services, . . . or in any other public services or social networks, and that Verizon does not endorse any advice or opinion contained therein.” Verizon Online Terms of Service ¶ 12(5) (Apr. 19, 2015), available at http://www.verizon.com/idc/groups/public/documents/adacct/ USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 13 of 29 4 version_15-1_internet_tos.pdf (last visited Sept. 21, 2015); see also Alamo Broadband, Inc. Terms and Conditions ¶ 7, at http://www.alamobroadband.com/ ?page_id=277 (“[Alamo Broadband] specifically denies any responsibility for the accuracy or quality of any information obtained through the use of our services.”) (last visited Sept. 21, 2015). Similarly, Verizon has argued in past litigation that it does not endorse or take responsibility for the content it transmits between Internet users: [T]he Internet service provider performs a pure transmission or “conduit” function. . . . This function is analogous to the role played by common carriers in transmitting information selected and controlled by others. Traditionally, this passive role of conduit for the expression of others has not created any duties or liabilities under the copyright laws. Brief for Appellant at 23, Recording Indus. Ass’n of Am. v. Verizon Internet Serv., 351 F.3d 1229 (D.C. Cir. 2003) (Nos. 03-7015 & 03-7053). Indeed, to the extent that broadband Internet access service providers now claim to be First Amendment speakers in their transmission of others’ speech, see Alamo Pet. Br. 4-5, they cannot have it both ways. See Rob Frieden, Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits, 12 U. Pa. J. Const. L. 1279, 1284-95 (2010) (cataloguing alternative First Amendment positions of broadband providers). Based on their representations to their customers and the public, USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 14 of 29 5 broadband providers are conduits that make no claim to any particular message sent or received by their users. Second, there is little likelihood that users would understand providers to be expressing a message through their provision of broadband Internet access service. A broadband provider transmits an all-but-infinite variety of messages and content across the entire Internet. These messages are of course often contradictory, and no reasonable user could impute all of these various conflicting views to the provider. In this way, broadband providers are similar to the shopping center owner in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). In that case, the Supreme Court held that a state constitution (which the Court treated no differently from a state statute) could require the private owner of a shopping mall that was open to the public to allow members of the public to distribute leaflets and solicit petition signatures inside the mall. While the First Amendment does not require that shopping malls be held open for public speech, the Court concluded that imposing such a requirement by legislation was not a regulation of the owners’ speech. Instead, it was a regulation of the owners’ conduct—holding the mall open as a forum. See id. at 87-88. That conduct, the Court reasoned in part, was not expressive because “[t]he views expressed by members of the public in passing out USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 15 of 29 6 pamphlets or seeking signatures for a petition . . . will not likely be identified with those of the owner.” Id. at 87. Internet users, moreover, would not draw a connection between the performance of their broadband networks—the conduct that the Open Internet Rules regulate—and expression by the network operators. That is because an Internet user who “encounters a slow or inaccessible website or application has no way of knowing whether that content is being slowed down or blocked by her Internet access provider.” Nicholas Bramble, Ill Telecommunications: How Internet Infrastructure Providers Lose First Amendment Protection, 17 Mich. Telecomm. & Tech. L. Rev. 67, 89 (2010). Slowdowns or interruptions in service might be caused by another entity’s network congestion or decision to block the website, or the website provider’s own failure to maintain the site or its decision not to transmit content at that time and location. See id. In short, the connection between conduct and message is too attenuated to support in the average user an inference that her broadband provider disapproves of particular content. Without additional explanation from the provider to express an opinion about the content it does or does not transmit, a user’s inability to access that content communicates nothing. As the Supreme Court has explained, “[t]he fact that . . . explanatory speech is necessary is strong evidence that the conduct at issue here is not so USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 16 of 29 7 inherently expressive that it warrants protection.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (FAIR). Broadband providers do not convey a particularized message and Internet users would not see their providers’ conduct as conveying a particularized message. Because the Open Internet Rules therefore regulate only non-expressive conduct, they are not subject to heightened First Amendment scrutiny under the rule in Johnson, 491 U.S. at 404, and Spence, 418 U.S. at 410-11. II. THE OPEN INTERNET RULES DO NOT COMPEL SPEECH As described above, broadband Internet access service providers are not speakers when they engage in the regulated conduct but instead are merely conduits. It follows that when the Open Internet Rules require providers to carry others’ speech, they do not require the providers themselves to speak. This conclusion draws support from a line of cases in which the Supreme Court has held that there can be no compulsion of speech without an underlying expressive interest. In FAIR, for example, the Court held that law schools could be required to host military recruiters who wanted to interview student job applicants on their campuses. See 547 U.S. at 60-61, 64-65. The Court held that on-campus employment services were not expressive. See id. at 65-67. It therefore followed easily that the requirement of access for military recruiters on equal terms with other employers “affect[ed] what law schools must do . . . not what they may or USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 17 of 29 8 may not say.” Id. at 60 (emphasis in original). The regulation therefore did not compel any speech from the law schools. See id. at 63-65. Broadband providers are similarly situated to the law schools in FAIR. By contrast, they are unlike the parade organizers in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). In that case, the Court did not treat Boston’s annual St. Patrick’s Day parade as a neutral conduit for others’ speech because “[p]arades are . . . a form of expression,” id. at 568, in which the organizers “mak[e] some sort of collective point.” Id. The Court therefore found it a violation of the First Amendment to compel the parade organizers to include speakers with which they disagreed. To be sure, “a narrow, succinctly articulable message is not a condition of constitutional protection,” id. at 569, and the message in Hurley was diffuse and varied, an expression of Irish pride, see id. at 570. But broadband providers’ conduct does not evince even a diffuse message of “provider pride.” Broadband providers do not organize parades intended to communicate a point with which the Open Internet Rules interfere; and Internet users are not participating in such a parade. Instead, users are trying to speak with one another using broadband providers’ conduit services. Requiring providers to transmit users’ speech evenhandedly therefore does not compel those providers to speak. Similarly, broadband providers cannot claim that the Open Internet Rules “interfere[]” with any of their own expressive choices. FAIR, 547 U.S. at 64. USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 18 of 29 9 Broadband providers are unlike the newspaper publisher in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), which exercised editorial judgment over the content of its newspaper and therefore could not be compelled to give political candidates equal space to address criticism that the newspaper published. See id. at 254-58. As press organs, newspapers have long been thought to exercise their own expressive functions. See id. at 254-55; see also Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 653 (1994) (“Tornillo affirmed an essential proposition: The First Amendment protects the editorial independence of the press.”). The “editor” of a newspaper is responsible for doling out assignments and selecting stories, whereas broadband service providers offer Internet transmission and interconnection services, not content curation. Because newspapers cannot “proceed to infinite expansion of . . . column space,” Tornillo, 418 U.S. at 257, “[t]he choice of material to go into a newspaper . . . constitute[s] the exercise of editorial control and judgment.” Id. at 258. Broadband providers also are unlike the cable operators in Turner Broadcasting. In that case, the Supreme Court held that a statute requiring cable operators to transmit local broadcast television signals over their systems was subject to heightened First Amendment scrutiny. See 512 U.S. at 643-45. The Court understood cable operators to “exercis[e] editorial discretion over which stations or programs to include in [their] repertoire,” id. at 636 (quoting Los USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 19 of 29 10 Angeles v. Preferred Commnc’ns, Inc., 476 U.S. 488, 494 (1986)) because technological constraints on the number of available cable channels meant that the selection of stations to carry was an act of judgment. The must-carry rules “reduce[d] the number of channels over which cable operators exercise[d] unfettered control,” id. at 637, and therefore interfered with that judgment. Indeed, the Court in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996) drew a distinction for First Amendment purposes between those channels and public access channels, “over which cable operators have not historically exercised editorial control,” subjecting the latter to lower scrutiny. Id. at 761 (plurality op.). This is not how broadband providers operate. Unlike newspapers and cable companies, broadband providers do not and need not exercise editorial control in order to determine how to fill a limited number of newspaper column inches or television channels. There is no limit to the applications, content, and services available over the Internet, and no technological constraint that prevents broadband providers from offering their users access to the entire Internet. Broadband Internet access service, as described above, is not the provision of a curated body of the Internet’s “greatest hits,” nor is there any technological reason why it has to be. Instead, that service gives users a connection over which they select for themselves the content they want to send and receive. It is much more like USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 20 of 29 11 traditional phone networks; there is no need to “edit” or “select” who can make or receive phone calls. To the extent that broadband providers do speak through services other than broadband Internet access service—when, for example, they set up their own websites advertising or selling their own or affiliated products—they benefit just as much from the Open Internet Rules as any other speaker transmitting content over the Internet. They enjoy nondiscriminatory access to any user with a broadband connection. The Open Internet Rules therefore enhance, rather than chill, broadband providers’ other speech. Because, as described above, this is not a case in which the government is compelling speech, it is a fortiori not a case in which the government is burdening a commercial speaker with additional speech. Carrying other speakers’ content is entirely distinct from and does not interfere with any commercial content that the broadband provider itself might express. Even if they were related, compelled commercial disclosure is only subject to heightened scrutiny if it has a “chilling” effect on protected commercial speech. See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985).3 The Open Internet Rules have the opposite effect here. 3 The reach of Zauderer remains unsettled in this Court and more broadly. See Nat’l Assn. of Mfrs. v. SEC, No. 13-5252, 2015 WL 5089667, at *4 & n.16 (D.C. Cir. Aug. 18, 2015). To the extent that broadband providers speech comprises commercial advertising, which is likely to be the bulk of broadband providers’ speech as a practical matter, it falls squarely within Zauderer’s scope as this Court USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 21 of 29 12 III. COMMON CARRIAGE REGULATIONS LIKE THE OPEN INTERNET RULES ARE NOT AND SHOULD NOT BE SUBJECT TO FIRST AMENDMENT SCRUTINY The Open Internet Rules are a form of common carriage regulation. This Court so held in Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), with respect to the Commission’s previously enacted anti-discrimination, see id. at 655-56, and anti-blocking rules, see id. at 657-59. And in this case, the Commission has expressly reclassified broadband Internet access service as a “telecommunications service” subject to Title II of the Communications Act. See Order ¶¶ 355-408. That classification subjects broadband Internet access service to common carriage regulation. See 47 U.S.C. § 153(51) (“A telecommunications carrier shall be treated as a common carrier under this chapter only to the extent that it is engaged in providing telecommunications services.”). The “basic characteristic” of common carriage is “the common law requirement of holding oneself out to serve the public indiscriminately.” Verizon, 740 F.3d at 651 (internal quotation marks omitted). Telephone companies are classic common carriers—they transmit voice traffic indiscriminately over their networks. Such carriers are treated as neutral platforms. “The assumption for common carriers like telephone companies generally has been that they are not interpreted it in American Meat Institute v. United States Department of Agriculture, 760 F.3d 18, 22-23 (D.C. Cir. 2014) (en banc). USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 22 of 29 13 speakers, and have no First Amendment right to discriminate against speech or speakers.” Rebecca Tushnet, Power Without Responsibility: Intermediaries and the First Amendment, 76 Geo. Wash. L. Rev. 986, 125 n.100 (2008); see also Stuart Minor Benjamin, Transmitting, Editing, and Communicating: Determining What “The Freedom of Speech” Encompasses, 60 Duke L.J. 1673, 1686-87 (2011) (“Courts have placed common carriers and other mere conduits at the opposite end of the spectrum from speakers, and have held that conduits do not have free speech rights of their own.”). The Supreme Court has often drawn a distinction between protected speech and unprotected common carriage. See, e.g., FCC v. League of Women Voters of Cal., 468 U.S. 364, 378 (1984) (“Unlike common carriers, broadcasters are entitled under the First Amendment to exercise the widest journalistic freedom consistent with their public duties.”) (internal quotation marks omitted); Denver Area, 518 U.S. at 739 (plurality op.) (describing “speech interests” in “leased channels” as “relatively week because they act less like editors, such as newspapers or television broadcasters, than like common carriers, such as telephone companies”); Turner Broad., 512 U.S. at 684 (O’Connor, J., concurring in part and dissenting in part) (suggesting that common carriage regulation of cable companies, like telephone companies, would be constitutionally permissible). Indeed, Sable Communications v. FCC, 492 U.S. 115 (1989), suggests not only that nondiscrimination in USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 23 of 29 14 telephone service is never suspect under the First Amendment, but that the opposite is true: government interference with neutral transmission of content over common carriage communications systems is a violation of the users’ free speech rights. See id. at 126-31. This treatment of common carriage supports rather than undermines critical First Amendment values. As the Court explained in Reno v. ACLU, 521 U.S. 844 (1997), the Internet is “the most participatory form of mass speech yet developed,” id. at 863 (internal quotation marks omitted), enabling “any person with,” at that time, “a phone line [to] become a town crier with a voice that resonates farther than it could from any soapbox.” Id. at 870. The Court did not say that only those who own the phone company or have permission from the phone company that holds relevant First Amendment rights can be the town crier. Today, of course, phone lines have been replaced with broadband Internet access, which makes the Internet an even more effective and crucial tool of speech and communication. And Reno’s observations are more important than ever. As the Commission found, “the Internet’s openness is critical to its ability to serve as a platform for speech and civic engagement.” Order ¶ 77. Because common carriage rules foster that openness they provide crucial support for the speech activity that happens every second of every day over the Internet. USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 24 of 29 15 CONCLUSION The petition for review should be denied. September 21, 2015 Respectfully submitted, /s/Gregory A. Beck Gregory A. Beck 3504 Woodridge Ave. Silver Spring, MD 20902 (202) 684.6339 gregory.beck@gmail.com Counsel for Amici Curiae USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 25 of 29 16 APPENDIX LIST OF SIGNATORIES (Institutions are listed for identification purposes only) Jack M. Balkin Knight Professor of Constitutional Law and the First Amendment Yale Law School Yochai Benkler Jack N. and Lillian R. Berkman Professor for Entrepreneurial Legal Studies Harvard Law School John F. Blevins Associate Professor of Law Loyola University New Orleans College of Law Michael J. Burstein Associate Professor of Law Cardozo School of Law Yeshiva University Robert Frieden Pioneers Chair and Professor of Telecommunications and Law Penn State University Brett Frischmann Professor of Law Cardozo School of Law Yeshiva University Theodore L. Glasser Professor, Department of Communication Stanford University Ellen Goodman Professor of Law Rutgers University School of Law USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 26 of 29 17 Lawrence Lessig Roy L. Furman Professor of Law Harvard Law School Dawn C. Nunziato Professor of Law The George Washington University Law School Pamela Samuelson Richard M. Sherman Distinguished Professor of Law University of California, Berkeley Fred Turner Professor and Chair, Department of Communication Stanford University Rebecca Tushnet Professor of Law Georgetown University Law Center Barbara van Schewick Professor of Law and (by Courtesy) Electrical Engineering Helen L. Crocker Faculty Scholar Stanford Law School Jonathan T. Weinberg Professor of Law Wayne State University USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 27 of 29 18 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and D.C. Circuit Rule 29(d), the undersigned certifies that this brief complies with the applicable type-volume limitations. This brief was prepared using a proportionally spaced type (Times New Roman, 14 point). Exclusive of the portions exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) and D.C. Circuit Rule 32(e)(1), this brief contains 3,273 words. This certificate was prepared in reliance upon the word-count function of the word-processing system (Microsoft Word for Mac 2011) used to prepare the brief. /s/Gregory A. Beck Gregory A. Beck September 21, 2015 USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 28 of 29 19 CERTIFICATE OF SERVICE I hereby certify that, on September 21, 2015, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. /s/Gregory A. Beck Gregory A. Beck September 21, 2015 USCA Case #15-1063 Document #1574187 Filed: 09/21/2015 Page 29 of 29