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