I used to think that “free speech” meant that people have the right to express their opinions freely, and that the government does not have the right to impose restrictions on the content of newspapers and other forms of public media. But as Mitt Romney famously said, “Corporations are people,” and the Supreme Court says their right to free speech cannot be abridged.
Now Verizon, a giant corporation that provides both wireless and broadband access to millions of customers, has decided that since it is a corporation, and thus a person, it has the right to censor the content you download on its networks, censorship being yet another form of free speech.
I know that sounds crazy. Last week, though, Verizon filed a brief with the U.S. District Court of Appeals, arguing that the FCC’s order on net neutrality is threatening its First Amendment right to freedom of speech and its property rights under the Fifth Amendment. (You can read the 116-page document here.)
“Broadband networks are the modern-day microphone by which their owners engage in First Amendment speech,” Verizon writes.
And since it owns the microphone, Verizon believes it has the right to control the content that streams over it. “Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others,” it argues. And since the government can’t tell a newspaper that it has to print something, Verizon argues that the FCC can’t tell it that it has to transmit something on its network.
OK. Take a deep breath. I think it’s highly unlikely that Verizon will pull the plug on Web sites containing opinions or content that its board of directors disagrees with. I’m hardly a Verizon fan boy, but I simply don’t believe it. Does Verizon really want to be responsible for everything distributed on the Web, including libel, theft, and other illegal behavior? Of course not.
So why would Verizon claim a right that it likely has no interest in exercising?
Verizon, in fact, doesn’t really want the power to censor, but it does want the power to discriminate. And by discriminate, I mean the power to treat different forms of content, or content owned by different providers, differently. Here is an example of how that actually works.
If you’re a Comcast customer, watching a streaming movie via Netflix will count against your monthly allotment of data. But if you watch the same movie via Comcast’s Xfinity TV app on the Xbox 360, it won’t count against your allotment. Comcast, of course, wants people to watch the content that it sells, not the content of a competitor.
Verizon wants the power to do the very same thing, but unlike Comcast, it’s smart enough to realize that the FCC’s orders on net neutrality make that form of discrimination illegal. So it filed the brief as part of a lawsuit aimed at overturning the FCC’s Open Internet Order. Net neutrality essentially means that bits are bits, and with a few reasonable exceptions related to network management, a company that provides access may not discriminate against one form of content in favor of another.
If Verizon struck a deal with Microsoft in a world in which net neutrality didn’t exist, it could block content from Google search and allow content from Bing to move ahead. Or, it could create “express lanes” that speed content to users at high speeds, while content from competitors travel in the slow lane.
There’s a lot of legal and regulatory geekery behind these issues. But ultimately the stakes are very clear. As Simon Maloy, a research fellow at Media Matters, said in a recent blog post: “By holding out for ‘editorial discretion,’ Verizon wants to preserve their right to pick favorites, wall off the garden, and start charging for admission.”
San Francisco journalist Bill Snyder writes frequently about business and technology. His work appears regularly in CIO.com and the publications of Stanford's Graduate School of Business and the Haas School of Business at the University of California at Berkeley. He welcomes your comments and suggestions.