Brief Amici Curiae of the Center for Democracy & Technology and Legal Scholars in Support of Appellee

Publication Type: 
Litigation Brief
Publication Date: 
November 15, 2012
All parties and intervenors have consented to the filing of this brief. Amici Curiae filed their notice of intent to participate on October 31, 2012.1
Pursuant to D.C. Circuit Rule 29(d), amici curiae the Center for Democracy & Technology (CDT) and Legal Scholars Marvin Ammori, Jack M. Balkin, Michael J. Burstein, Anjali S. Dalal, Rob Frieden, Ellen P. Goodman, David R. Johnson, Dawn C. Nunziato, David G. Post, Pamela Samuelson, Rebecca Tushnet, Barbara van Schewick, and Jonathan Weinberg certify that they are submitting a separate brief from other amici curiae in this case due to the specialized nature of each amici’s distinct interests and expertise. This is a brief of First Amendment and Internet law professors focused solely and directly on rebutting Appellants/Petitioners’ First Amendment arguments in the context of the most current and relevant precedents, including significant discussion of the implications of the landmark case of Reno v. ACLU, 521 U.S. 844 (1997), and with extended application of the intermediate scrutiny laid out in Turner Broadcasting System, Inc. v. FCC (Turner I), 512 U.S. 622 (1994), and Turner Broadcasting System, Inc. v. FCC (Turner II), 520 U.S. 180 (1997). CDT et al. anticipate an amicus brief of leading Internet engineers and technologists that will focus not on statutory and constitutional analysis but on explaining the technology of the Internet, the benefits of openness, and the threat to the Internet’s openness that the FCC order under review seeks to address. We also anticipate an amicus brief on behalf of former FCC Commissioners including Reed Hundt and other telecommunications policymakers that will in part address the First Amendment issue, but will not address the two specific aspects of the issue mentioned above, and will also address Fifth Amendment issues not discussed in this brief; that brief will focus on the implications of this case for vital policy activities of administrative agencies in the future. We anticipate an additional amicus brief of Professor Tim Wu, but that brief will focus on the history of telecommunications law’s interaction with First Amendment law, and is not expected to be duplicative of the content herein. Finally, we anticipate a brief on behalf of various venture capital investors that will focus on the Open Internet Rules’ implications for broadband investment and will not address the First Amendment. Given these divergent purposes, CDT et al. certify that filing a joint brief would not be practicable.