By Larry Downes
Technology Liberation Front
John Perry Barlow famously said that in cyberspace, the First Amendment is just a local ordinance. That’s still true, of course, and worth remembering. But at least today there is good news in the shire. The local ordinance still applies with full force, if only locally.
As I write in CNET this evening (see “Video Games Given Full First Amendment Protection“), the U.S. Supreme Court issued a strong and clear opinion today nullifying California’s 2005 law prohibiting the sale or rental to minors of what the state deemed “violent video games.”
The 7-2 decision in Brown v. EMA follows last week’s decision in Sorrell, which also addressed the role of the First Amendment in the digital economy. Sorrell dealt with a Vermont law that banned data mining of pharmacy information. That application, the Court said, was also protected speech.
The CNET article is quite long (duh), and I’ll let it speak for itself. There is also excellent commentary on both decisions from Adam Thierer and Berin Szoka here at the Technology Liberation Front. Adam and Berin submitted an amicus brief in the EMA case that closely tracked the Court’s opinion, which in fact quoted from another amicus brief from the Cato Institute. Berin also contributed a brief in the Sorrell case, again on the winning side.
Perhaps the most interesting commentary on today’s decision, however, comes from Prof. Susan Crawford. Prof. Crawford’s blog on EMA notes that an important feature of the majority decision (written by Justice Scalia and joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan) is what she calls the “absolute” view it takes of speech. Crawford writes of Scalia’s opinion:
“Whether government regulation applies to creating, distributing, or consuming speech makes no difference,” he says in response to Justice Alito’s attempt to say that sale/rental is different from “creation” or “possession” of particular speech.
That view is absolute in the sense that it does not distinguish between different stages of the supply chain of information provisioning. The “speaker,” for First Amendment purposes, is not only the author of the content, but also distributors, retailers, and consumers. Each is equally protected by the First Amendment’s prohibition on government interference, whether that interference is a ban on certain content (violent video games) or a requirement to promote it (must-carry rules for cable).
Why does this matter? Though I have written and tesftified extensively about the FCC’s December, 2010 “Open Internet” order, I have so far avoided discussion of a possible First Amendment challenge. Frankly, I hadn’t initially thought it to be the strongest available argument against the legality of the rules.
But Prof. Crawford, a strong advocate for “net neutrality” in general, reads EMA as adding support to such an argument:
Today’s opinion may further strengthen the carriers’ arguments that any nondiscrimination requirement imposed on them should be struck down. Although a nondiscrimination requirement arguably promotes speech rather than proscribes it, the long-ago Turner case on “must-carry” obligations for cable already suggested that the valence of the requirement doesn’t really matter.
If challengers to the Open Internet order (which today added the State of Virginia to the list of those waiting in the wings to file lawsuits) can convince a court that rules requiring nondiscriminatory treatment of packets are effectively requiring carriers to speak, such a rule would be seen as content-based. Under EMA and last year’s decision in Stevens, such a rule could fail a First Amendment challenge.
It’s an interesting argument, to say the least. I think I’ll give it a little more thought.