HLR symposium on freedom of the press: Mark Tushnet & Susan Crawford

Harvard Law Review Symposium 2014: Freedom of the Press

Introduction: Mark Tushnet, Reflections on the First Amendment and the Information Economy

Symposium papers provide an opportunity to speculate about 1A issues in modern information economy, which is different from the info economy in 1963.  His perspective comes from general constitutional theory, not 1A specifics.  Issues like federalism and state action doctrine do bear on 1A issues.  Also begins with realist/political perspective on structure of constitutional doctrine/scholarship. 

Interest group perspective: there’s something like agency capture; 1A scholarship differs from other constitutional scholarship in that scholars of the 1A seem to like the amendment, which isn’t necessarily true of scholars of the 2d or 4^th Amendment.  Liking means something like, when the scholar hears that a law has been invalidated on 1A grounds, the presumption is that that’s correct by default; moderately strong reasons have to be offered why upholding a law is correct. Some 2d or 4^th Amendment scholars think this too, but others think that the Constitution would be better without them; that changes the scholarship, including who gets attracted to doing work in the field. 4^th Amendment: you get former prosecutors and defense attorneys; 1A selection is skewed, and press/media background attracts people to the field.  2d/4^th are dichotomized: you can be pro-gun or anti, pro-privacy or pro-police.

1A scholarship is pluralist, but only on the side of regulation. Some advocates of consumer protection seek disclosures/restrictions on some commercial speech; some feminists seek regulation of sexually explicit material; they develop arguments why those are consistent with the 1A.  This ends up like agency capture: the pro-regulatory argument differs from area to area—different rights (e.g., equality) set against rights of expression; categorical or general balancing (as with consumer protection), while those arguments are met on the other side with unified arguments for free speech.  This is like agency capture in that the interest groups opposing, e.g., railroad interests are diverse; some proposed regulations will affect one group, but other groups will generally be indifferent, and the railroads are there all the time, opposing each regulation.  Each other group is there only sporadically. The RR develop expertise in making arguments the agency tends to accept, but the diverse groups on the other side won’t.  Roughly the same thing happens in 1A.  Advocates of expansive interpretations are there all the time, and advocates of particular regulations aren’t, while they might even oppose some other regulation—proponents of consumer protection might be nervous about regulation of sexual materials.  Content owners want narrow 1A in copyright, but broad with respect to the content they produce. 

Brings out 2 features of 1A scholarship/doctrine: newspapers and other info disseminators will systematically like 1A and comment favorably on pro-1A invalidations, except for campaign finance.  Looked at Snyder v. Phelps, Brown v. Entertainment Merchants, Alvarez, and commentary basically all said: the underlying behavior is bad, but the Court was right to find the regulation unconstitutional. Judges, like the rest of us, get a warm glow from praise, so press’s 1A liking induces judges to uphold 1A claims.

Like the railroads’ lawyers, proponents of the expansive 1A know the doctrinal territory, whereas proponents of particular restrictions don’t.  So they can point out how the argument for a specific regulation is inconsistent with other doctrines, which they then assert govern.  Proponents of regulation are relegated to arguing that their regulation is distinguishable.  So consumer protection advocates confront the argument that the SCt has rejected general balancing tests.  Equality advocates confront arguments about rights v. rights balancing.

1A scholarship is scholarship about the 1A; things could be otherwise. We could have scholarship about constitutional law, taking the 1A as its specific focus, as we did when 1A was simply one topic in a general con law course.  Interesting to note the time when publishers started to ask casebook authors to split out the 1A chapters for separate publication, and when law schools started to split the structure course and the rights course; that was a particular historical moment.  Treating 1A as a separate field means that scholarship overlooks generalized skepticism about judicial review, prevalent in many other areas of constitutional law, e.g. the Commerce Clause.  Also systematically undervalues gov’t interest in regulating speech.

Justifications for allowing courts to displace judgments made by accountable branches.  1A scholars take such as given and seek to develop reasons—autonomy, but they don’t grapple with difficulties of distinguishing between autonomy arguments for expression and autonomy arguments for Lochner. More often, nod in direction of Carolene Products, but don’t work out a representation theory in detail. Very hard to explain directly how Vermont legislature, in prohibiting data mining of prescription info, was attempting to close off the channels of political change. There are ways to get there, but it takes a lot of work and is implausible.

Tendency within 1A scholarship and doctrine to disregard the possibility of generalized skepticism.  Justice Breyer’s argument in Alvarez: a robust assertion of judge’s power to assess legislation in light of the Constitution independent of congressional judgment about constitutionality.  He thinks there are better ways of accomplishing what Congress wanted to accomplish, where better means accomplishing the goals to roughly the same degree without impairing the 1A to the same degree. Judge’s policy perspective on the best way to get something done.  Exemplifies rejection of skepticism of judicial review. You can find scholars who are skeptical of judicial review in almost every field but 1A; there’s him and Adrian Vermeule, and sometimes he’s not sure about Vermeule.

One reason may be that 1A scholars implicitly believe that some justifications for judicial review are unassailable for all 1A issues, but there’s still inattention to justifications for regulation.  Lingering impulse to say, though we know it’s not true, that words can never hurt you.  Regulation is the product of a democratic process. In Alvarez, Congress made a judgment about the most effective way of protecting the reputation attached to a military honor. In other domains, the very fact that Congress has made such a judgment would carry some weight. 1A scholarship would profit from more systematic engagement with general constitutional theory.

Panel 1: Susan Crawford, First Amendment Common Sense

The handful of companies that sell high speed internet access claim that because they own some of the physical facilities over which EM pulses carry data, and because much of that data is speech protected by the 1A, that they themselves enjoy a 1A right to edit what our experience of the internet is.  That they are just like the editorial board of the NYT. Thus Congress may make no law restricting their editorial freedom.  Even if they were editing to disadvantage competitors, or suppress speech w/which they didn’t agree, restraining that discretion would be presumptively constitutional.

Those transmitting others’ speech from point A to point B aren’t necessarily 1A actors. But if this argument is taken seriously by a single court, that’s the victory.  If they are, congressional power to carry out the democratic process will be severely undermined. Congressional authority to balance incommensurable interests, take social policies into account, will be subject to constant second guessing by courts assuming that what they’re dealing with is a 1A problem. But these issues of info transmission/communications standards have been left to Congress even in the Lochner era. This is a get out of jail free card for all regulated industries.  Indirect relationship to speech = back off because of doctrine of constitutional avoidance. Gives them the moral high ground, erases Chevron deference. This is Lochner for a fundamental input into every aspect of American economic life.

If one court accepts this argument, the lobbyists will use it as a hammer.  The idea that Congress had no authority over health care took on weight by repetition, and that’s the attempt here.

Her goal: nip that argument in the bud. Don’t take it seriously.  Need some moments of common sense.  Create a space for Congress to act where the speech interests are sufficiently remote, indirect.

Transmitters carry our speech from place to place, advertise themselves based on speed and cost.  No showing of monopoly power under existing case law is required for that function, common carriage, to be the providers’ role in American society. It’s FCC’s obligation to treat them that way if they play that role, which they do. Precisely because the consequences of according 1A protection to these few actors are so great, SCt has been careful to warn us against attempting to recharacterize decisions as speech regulation: FAIR from 2006, where CJ Roberts marches through arguments about requiring law schools to allow military recruiters campus access. Nothing inherently expressive about law schools’ role. Schools weren’t speaking, and FAIR applies squarely to network operators’ arguments.  Nothing inherently expressive about conveying others’ data packets from place to place; nothing understood as the message sent by the carrier. Providers admit their interests are purely economic (holding some packets hostage) but want it to be treated as speech.

What are the gov’t’s interest?  Network providers now have market power to start editing, because market for high speed access is now so concentrated. Cable has won wired marketplace; 80% of Americans have only one choice.  With TWC/Comcast merger, their market power becomes even stronger.  AT&T and Verizon have market power in wireless. Although their status today is general-purpose communications networks, they have the power to change the facts on the ground, start editing and be perceived as editors, and change the way some court views what they do.  They are seeking newspaper/Miami Herald status, and now they have the market power to do it. Unless we nip this in the bud now, they’ll be hard to refute later.

Stuart Benjamin: Basically agree with everything.  His article.  Small disagreement: empirically, the Court hasn’t been hung up on terms like common carrier, and has looked at what alleged speakers actually do. This is how we got the result in Sorrell.  If tomorrow, Congress says that Upworthy and Reddit can’t prioritize their webpages, nothing will turn on characterization as common carrier.  If an entity is engaged in pure transmission of bits, it’s not a speaker whether we call it a common carrier or a banana.  If transmission is speech, then Ma Bell missed a powerful argument: the ability to not send calls made it a speaker. That would have been a failed argument and should be now.

Crawford also finds significance in the primarily (exclusively) economic motive of the carriers. He thinks that’s irrelevant.  Jeff Bezos might have wanted to make the most money and decided that the Washington Post was a better bet than an oil derrick, but that doesn’t change anything.  His reading of the cases is that in order to be “speech” under the 1A, you need a speaker seeking to transmit some substantive message and a listener who can recognize it, and mere transmission doesn’t qualify. Key case is Turner, in which all 9 Justices agree that cable operators are speakers because they engage in the editing function, not just choosing which programs to air, but choosing which channels to run over their wires.  But it wasn’t just transmission. SCt has never found a substantive communication that was sendable/receivable to be outside the 1A except for articulated exceptions.

Should give more significance to last few years’ decisions.  Sorrell, expanding the scope of the 1A; other cases in which the Court construes existing exceptions narrowly, such as US v. Stevens, Alvarez, Brown v. Ent’mt Merchants. Alvarez is particularly notable because the question was whether there was a 1A exception for false statements of fact generally, and the plurality said no, there are a series of narrow exceptions, all historically grounded (we aren’t making any more).

For a provider, if it is in fact engaged in substantive editing and is willing to tell users that, then they will be treated as speakers for 1A purposes. And that’s huge.  Heightened scrutiny for regulations of providers at least when engaged in that editing. 

FedEx transmits speech. No one thinks that FedEx is a speaker. But imagine that there were a DC delivery company that only delivered messages to/from Democrats, or Republicans.  That’s a speaker, communicating something more than transmission.

Everyone understood that cable companies chose what channels they chose to give, or the speaker announced that it was speaking. If Comcast decides to engage in substantive editing function, do they have to say that?  There’s a reasonable argument that a message that is never communicated is not speech for 1A purposes.  Imagine there’s a bulletin board that secretly deletes messages it doesn’t like, but never tells anyone about the editing—is that speech for 1A purposes? Reasonable to say that you have to be willing to tell the world to be covered.

Crawford: 50 years ago, lunch counters used 1A/rights of association as reason not to comply with antidiscrimination rules. No one took that seriously. There must be some area of action as gov’t not subject to 1A second guessing. Roads and communications networks are different/special, as interstate commerce, that deserves protection against the 1A. Thinks Turner “choosing programs” standard is silly too. When you’re selling transport, Congress should have power to say something about that. Gets difficult when same road sells pay TV and internet access.  SCt has deferred to idea that when you do both, we leave you alone.

Dawn Nunziato: Overly fearful about providers being treated as speakers? Why wouldn’t it survive Turner scrutiny?

Crawford: this isn’t just about net neutrality, but about anything about economic terms under which they’re obligated to provide service.  Wants to make sure Congress has leeway to make policy about general purpose communications networks.

Benjamin: true, Turner scrutiny isn’t that intense. But this is a big deal: FCC knew that if there was a 1A claim, different arguments had to be made, and marginal proposals might go by the wayside.

Q: Freedom from/freedom to?

Crawford: a few organizations shouldn’t dominate the speech of 300 million, but we need to frame the argument.

Q: what about an antitrust rule prohibiting carriers from providing content.

Crawford: that would be one rule. Nixon White House tried to separate content and conduit, but couldn’t figure out how to get it through Congress. But this 1A claim gets in Congress’s way, as does takings claims.

Benjamin: doesn’t think there would be a doctrinal/normative problem with that.

Caroline Mala Corbin: Chutzpah of corporations: Hobby Lobby, trying to use free exercise to get out of certain regulations.  Is there something leading to both of these?

Crawford: good lawyers look everywhere to help their clients. We’ve forgotten the larger democratic principles—because the communications networks are themselves tied up with speech, there’s a special role that feels different than Hobby Lobby.

Mark Tushnet: in both situations, the legislature has said something about the business model that you’re pursuing. Hobby Lobby: decide to use corporate form instead of partnership.  If your business model is violating the child labor laws, you can’t do it.  What about communication industries?  If your business model is making money out of insider trading, we know Congress can stop you from using that business model even though that involves speech.  Congress should be able to regulate communication industry business models.

Crawford: doesn’t want to limit it to antitrust—even in absence of market power.

Q: if we really believed in the Press Clause, we could solve many of these problems.

Yochai Benkler: Netflix—we can imagine advertising “you can get faster Netflix from us” pretty easily, and if that’s true Benjamin’s framework makes the cable company a 1A-protected speaker. That’s why Crawford’s argument is broader/more necessary.  Requiring separation of common carriage components from other components must itself be ok in the info industry—but then can you force a newspaper in a 1-paper town to carry new entrant on its delivery trucks?

Crawford: Court could make FCC nervous about any effort to reclassify, but it must act firmly now to inform what courts will do later. 

Benjamin: then every differential pricing model is protected by the 1A, and he can’t swallow that. Suppose Burger King says “we choose this supplier over another, and we charge some people more than others, and all these are part of our expression.” Not every decision to differentiate is a form of expression.  Turner’s argument: we are choosing these channels because we think they send a particular substantive message.  That’s different from saying we prefer Netflix to YouTube.

Benkler: but meat isn’t the same as House of Cards.  Turner rationale could be applied.

Benjamin: if you prefer a stream not because you like it better, but because it pays you more, that’s different.

Crawford: but that’s how cable channels get on.

Benjamin: one thing to say choosing USA Network because you like it; another to say it will be charged more/will pay more.

Tushnet: Burger King example misleads. Think of a real common carrier, a railroad, who says it won’t transport people to a right to life demonstration.  They can’t do that: they’re a common carrier.

Benjamin: if FedEx says it will charge more to some companies who send documents, fine, but that’s not expression.

Tushnet: it may be part of their expression, but as common carriers they don’t have an ex ante entitlement to discriminate.

Benjamin: but FedEx isn’t a common carrier. It still won’t be speech for them to charge more (or less) to big companies anyway.

Q: isn’t it overly optimistic to “nip this in the bud”? As long as they can develop greater market power and begin to exercise editorial functions, they can always bring a new case.

Crawford: true. Need correct administrative classification, and also rejection of 1A argument. Importance of 1A is to give people courage to do their jobs.

Jack Balkin: Suppose Congress passed §230(c)(2), excusing provider from liability for filtering/etc.  Wouldn’t that suggest that Congress has made a decision to treat this as 1A-protected activity?  Treats them as having editorial rights.  Congress is permitted to design structure ex ante; judicial review arises within that structure. But when Congress tries to have it both ways, it enables the argument you’re trying to fight.  (RT: I would think that as to common carriers/pure conduits for data flow like Comcast as internet provider, § 230 didn’t change/set the standard.)

Benjamin: highlights the importance of drawing the distinction between kinds of editing. Newspapers, when they choose to charge more for classified ads based on size, they might try to claim it’s all speech.  But we shouldn’t buy that with respect to price. Best argument for that is what DC Circuit has done for cable companies, allowing them to challenge limits on rates they could charge subscribers—DC Circuit said with no discussion that this implicates the 1A, which is a mistake.  Silly constitutional straightjacket.

Balkin: we think that Congress passes law and judiciary draws 1A lines, but Congress created the industry structure first, within which 1A review occurs, which is why reclassification would matter.

Crawford: trying to retain congressional role as decider.