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Cybersecurity & Standards

CDT and Legal Scholars to Court: Internet Providers Don’t Have a First Amendment Right to Edit the Net

WASHINGTON—Today the Center for Democracy & Technology (CDT) filed a brief urging the DC Circuit Court of Appeals to protect the free speech rights of Internet users and reject Internet service providers’ claims that they have a First Amendment right to edit their customers’ Internet experience.

CDT, working with Yale Law School’s Information Society Project and joined by over a dozen law professors expert in the First Amendment, telecommunications and Internet law, filed its friend-of-the-court brief in the case of Verizon v. FCC. That lawsuit, brought by Verizon and MetroPCS, challenges the Open Internet Rules issued by the FCC in December 2010 to enforce the principle of Internet neutrality.

The brief responds to the companies’ argument that they have a First Amendment right to exercise “editorial discretion” over the content they transmit, a right they argue renders unconstitutional the FCC’s requirement that they not block or interfere with their customers’ access to lawful Internet content. The brief filed today takes issue with the providers’ attempt to liken themselves to newspaper editors, and it explains how the net neutrality rules do not restrict Verizon or MetroPCS’s own speech but only regulate their conduct as a conduit for others’ speech.

“The claim that Internet service providers have a First Amendment right to edit the Internet poses a clear threat to online free speech and innovation,” said CDT Free Expression Director Kevin Bankston. “The argument that anyone with the capability to block speech has a constitutional right to do so is a slippery slope that could lead to a world where ISPs, the phone company, and even FedEx get to pick and choose who gets to communicate what and when.”

“Internet providers are claiming they have a First Amendment right that trumps their users’ free speech rights,” said CDT Senior Policy Analyst Andrew McDiarmid. “If they’re successful, they get the power to decide what all of us get to say, see, and hear online. That would undermine the key feature of the Internet — the ability of users and services at the edges of the network to communicate and innovate without having to seek permission from gatekeepers,” McDiarmid said.

Oral argument in Verizon v. FCC has not yet been scheduled but is likely to be in early to mid-2013; briefing is scheduled to conclude in January.

The brief can be found here.