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First Amendment & Cyberlaw Scholars File Brief to Defend Open Internet Rules

On Monday, September 21st, fifteen of the nation's leading First Amendment and cyberlaw scholars -- including Jack Balkin (Yale), Yochai Benkler (Harvard), Theodore L. Glasser (Stanford), Larry Lessig (Harvard), Pamela Samuelson (Berkeley), Fred Turner (Stanford), and Barbara van Schewick (Stanford) -- filed a friends-of-the-Court brief in federal court defending the Open Internet Rules on First Amendment grounds.

In their lawsuit against the FCC, carriers have attacked the rules as a violation of their free speech. They argue that, like newspapers or cable operators, they are editors of their users’ Internet connection and therefore "speak" when they transmit their users’ data. According to them, the FCC’s Open Internet rules deprive them of editorial discretion by removing their ability to choose what content their users see online and forcing them to carry speech with which they disagree.

In their brief, the scholars show that broadband Internet access providers are different from newspaper editors or cable operators. They do not "speak" when they transmit their users’ data to and from the Internet; like other common carriers, they only serve as a neutral conduit for others’ speech, so the FCC’s Open Internet rules should not be subject to heightened First Amendment scrutiny. They also demonstrate that the rules advance rather than violate First Amendment values.

The full text of the amicus brief can be found here. The brief was signed by the following professors: 

Jack M. Balkin, Yale Law School

Yochai Benkler, Harvard Law School

John F. Blevins, Loyola University New Orleans College of Law

Michael J. Burstein, Cardozo School of Law, Yeshiva University

Robert Frieden, Penn State University

Brett Frischmann, Cardozo School of Law, Yeshiva University

Theodore L. Glasser, Stanford University

Ellen Goodman, Rutgers University School of Law

Lawrence Lessig, Harvard Law School

Dawn C. Nunziato, The George Washington University Law School

Pamela Samuelson, University of California, Berkeley

Fred Turner, Stanford University

Rebecca Tushnet, Georgetown University Law Center

Barbara van Schewick, Stanford Law School

Jonathan T. Weinberg, Wayne State University


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