Archives For First Amendment

It is a truth universally acknowledged that unwanted telephone calls are among the most reviled annoyances known to man. But this does not mean that laws intended to prohibit these calls are themselves necessarily good. Indeed, in one sense we know intuitively that they are not good. These laws have proven wholly ineffective at curtailing the robocall menace — it is hard to call any law as ineffective as these “good”. And these laws can be bad in another sense: because they fail to curtail undesirable speech but may burden desirable speech, they raise potentially serious First Amendment concerns.

I presented my exploration of these concerns, coming out soon in the Brooklyn Law Review, last month at TPRC. The discussion, which I get into below, focuses on the Telephone Consumer Protection Act (TCPA), the main law that we have to fight against robocalls. It considers both narrow First Amendment concerns raised by the TCPA as well as broader concerns about the Act in the modern technological setting.

Telemarketing Sucks

It is hard to imagine that there is a need to explain how much of a pain telemarketing is. Indeed, it is rare that I give a talk on the subject without receiving a call during the talk. At the last FCC Open Meeting, after the Commission voted on a pair of enforcement actions taken against telemarketers, Commissioner Rosenworcel picked up her cell phone to share that she had received a robocall during the vote. Robocalls are the most complained of issue at both the FCC and FTC. Today, there are well over 4 billion robocalls made every month. It’s estimated that half of all phone calls made in 2019 will be scams (most of which start with a robocall). .

It’s worth noting that things were not always this way. Unsolicited and unwanted phone calls have been around for decades — but they have become something altogether different and more problematic in the past 10 years. The origin of telemarketing was the simple extension of traditional marketing to the medium of the telephone. This form of telemarketing was a huge annoyance — but fundamentally it was, or at least was intended to be, a mere extension of legitimate business practices. There was almost always a real business on the other end of the line, trying to advertise real business opportunities.

This changed in the 2000s with the creation of the Do Not Call (DNC) registry. The DNC registry effectively killed the “legitimate” telemarketing business. Companies faced significant penalties if they called individuals on the DNC registry, and most telemarketing firms tied the registry into their calling systems so that numbers on it could not be called. And, unsurprisingly, an overwhelming majority of Americans put their phone numbers on the registry. As a result the business proposition behind telemarketing quickly dried up. There simply weren’t enough individuals not on the DNC list to justify the risk of accidentally calling individuals who were on the list.

Of course, anyone with a telephone today knows that the creation of the DNC registry did not eliminate robocalls. But it did change the nature of the calls. The calls we receive today are, overwhelmingly, not coming from real businesses trying to market real services or products. Rather, they’re coming from hucksters, fraudsters, and scammers — from Rachels from Cardholder Services and others who are looking for opportunities to defraud. Sometimes they may use these calls to find unsophisticated consumers who can be conned out of credit card information. Other times they are engaged in any number of increasingly sophisticated scams designed to trick consumers into giving up valuable information.

There is, however, a more important, more basic difference between pre-DNC calls and the ones we receive today. Back in the age of legitimate businesses trying to use the telephone for marketing, the relationship mattered. Those businesses couldn’t engage in business anonymously. But today’s robocallers are scam artists. They need no identity to pull off their scams. Indeed, a lack of identity can be advantageous to them. And this means that legal tools such as the DNC list or the TCPA (which I turn to below), which are premised on the ability to take legal action against bad actors who can be identified and who have assets than can be attached through legal proceedings, are wholly ineffective against these newfangled robocallers.

The TCPA Sucks

The TCPA is the first law that was adopted to fight unwanted phone calls. Adopted in 1992, it made it illegal to call people using autodialers or prerecorded messages without prior express consent. (The details have more nuance than this, but that’s the gist.) It also created a private right of action with significant statutory damages of up to $1,500 per call.

Importantly, the justification for the TCPA wasn’t merely “telemarketing sucks.” Had it been, the TCPA would have had a serious problem: telemarketing, although exceptionally disliked, is speech, which means that it is protected by the First Amendment. Rather, the TCPA was enacted primarily upon two grounds. First, telemarketers were invading the privacy of individuals’ homes. The First Amendment is license to speak; it is not license to break into someone’s home and force them to listen. And second, telemarketing calls could impose significant real costs on the recipients of calls. At the time, receiving a telemarketing call could, for instance, cost cellular customers several dollars; and due to the primitive technologies used for autodialing, these calls would regularly tie up residential and commercial phone lines for extended periods of time, interfere with emergency calls, and fill up answering machine tapes.

It is no secret that the TCPA was not particularly successful. As the technologies for making robocalls improved throughout the 1990s and their costs went down, firms only increased their use of them. And we were still in a world of analog telephones, and Caller ID was still a new and not universally-available technology, which made it exceptionally difficult to bring suits under the TCPA. Perhaps more important, while robocalls were annoying, they were not the omnipresent fact of life that they are today: cell phones were still rare; most of these calls came to landline phones during dinner where they were simply ignored.

As discussed above, the first generation of robocallers and telemarketers quickly died off following adoption of the DNC registry.

And the TCPA is proving no more effective during this second generation of robocallers. This is unsurprising. Callers who are willing to blithely ignore the DNC registry are just as willing to blithely ignore the TCPA. Every couple of months the FCC or FTC announces a large fine — millions or tens of millions of dollars — against a telemarketing firm that was responsible for making millions or tens of millions or even hundreds of millions of calls over a multi-month period. At a time when there are over 4 billion of these calls made every month, such enforcement actions are a drop in the ocean.

Which brings us to the FIrst Amendment and the TCPA, presented in very cursory form here (see the paper for more detailed analysis). First, it must be acknowledged that the TCPA was challenged several times following its adoption and was consistently upheld by courts applying intermediate scrutiny to it, on the basis that it was regulation of commercial speech (which traditionally has been reviewed under that more permissive standard). However, recent Supreme Court opinions, most notably that in Reed v. Town of Gilbert, suggest that even the commercial speech at issue in the TCPA may need to be subject to the more probing review of strict scrutiny — a conclusion that several lower courts have reached.

But even putting the question of whether the TCPA should be reviewed subject to strict or intermediate scrutiny, a contemporary facial challenge to the TCPA on First Amendment grounds would likely succeed (no matter what standard of review was applied). Generally, courts are very reluctant to allow regulation of speech that is either under- or over-inclusive — and the TCPA is substantially both. We know that it is under-inclusive because robocalls have been a problem for a long time and the problem is only getting worse. And, at the same time, there are myriad stories of well-meaning companies getting caught up on the TCPA’s web of strict liability for trying to do things that clearly should not be deemed illegal: sports venues sending confirmation texts when spectators participate in text-based games on the jumbotron; community banks getting sued by their own members for trying to send out important customer information; pharmacies reminding patients to get flu shots. There is discussion to be had about how and whether calls like these should be permitted — but they are unquestionably different in kind from the sort of telemarketing robocalls animating the TCPA (and general public outrage).

In other words the TCPA prohibits some amount of desirable, Constitutionally-protected, speech in a vainglorious and wholly ineffective effort to curtail robocalls. That is a recipe for any law to be deemed an unconstitutional restriction on speech under the First Amendment.

Good News: Things Don’t Need to Suck!

But there is another, more interesting, reason that the TCPA would likely not survive a First Amendment challenge today: there are lots of alternative approaches to addressing the problem of robocalls. Interestingly, the FCC itself has the ability to direct implementation of some of these approaches. And, more important, the FCC itself is the greatest impediment to some of them being implemented. In the language of the First Amendment, restrictions on speech need to be narrowly tailored. It is hard to say that a law is narrowly tailored when the government itself controls the ability to implement more tailored approaches to addressing a speech-related problem. And it is untenable to say that the government can restrict speech to address a problem that is, in fact, the result of the government’s own design.

In particular, the FCC regulates a great deal of how the telephone network operates, including over the protocols that carriers use for interconnection and call completion. Large parts of the telephone network are built upon protocols first developed in the era of analog phones and telephone monopolies. And the FCC itself has long prohibited carriers from blocking known-scam calls (on the ground that, as common carriers, it is their principal duty to carry telephone traffic without regard to the content of the calls).

Fortunately, some of these rules are starting to change. The Commission is working to implement rules that will give carriers and their customers greater ability to block calls. And we are tantalizingly close to transitioning the telephone network away from its traditional unauthenticated architecture to one that uses a strong cyrptographic infrastructure to provide fully authenticated calls (in other words, Caller ID that actually works).

The irony of these efforts is that they demonstrate the unconstitutionality of the TCPA: today there are better, less burdensome, more effective ways to deal with the problems of uncouth telemarketers and robocalls. At the time the TCPA was adopted, these approaches were technologically infeasible, so the its burdens upon speech were more reasonable. But that cannot be said today. The goal of the FCC and legislators (both of whom are looking to update the TCPA and its implementation) should be less about improving the TCPA and more about improving our telecommunications architecture so that we have less need for cludgel-like laws in the mold of the TCPA.

 

It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.

The Federal Circuit handed down a victory for free expression today — in the commercial context no less. At issue was the Lanham Act’s § 2(a) prohibition of trademark registrations that

[c]onsist[] of or comprise[] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

The court, sitting en banc, held that the “disparaging” provision is an unconstitutional violation of free expression, and that trademarks will indeed be protected by the First Amendment. Although it declined to decide whether the other prohibitions actually violated the First Amendment, the opinion contained a very strong suggestion to future panels that this opinion likely applies in that context as well.

In many respects the opinion was not all that surprising (particularly if you’ve read my thoughts on the subject here and here ). However given that it was a predecessor Court of Customs and Patent Appeals decision, In Re McGinley, that once held that First Amendment concerns were not implicated at all by § 2(a) because “it is clear that the … refusal to register appellant’s mark does not affect his right to use it” — totally ignoring of course the chilling effects on speech — it was by no means certain that this decision would come out correctly decided.

Today’s holding vacated a decision from a three-judge panel that, earlier this year, upheld the ill-fated “disparaging” prohibition. From just a cursory reading of § 2(a), it should be a no-brainer that it clearly implicates the content of speech — if not a particular view point — and should get at least some First Amendment scrutiny. However, the earlier three-judge opinion  gave all of three paragraphs to this consideration — one of which was just a quotation from McGinley. There, the three-judge panel rather tersely concluded that the First Amendment argument was “foreclosed by our precedent.”

Thus it was with pleasure that I read the Federal Circuit as it today acknowledged that “[m]ore than thirty years have passed since the decision in McGinley, and in that time both the McGinley decision and our reliance on it have been widely criticized[.]” The core of the First Amendment analysis is fairly straightforward: barring “disparaging” marks from registration is neither content neutral nor viewpoint neutral, and is therefore subject to strict scrutiny (which it fails). The court notes that McGinley’s First Amendment analysis was “cursory” (to put it mildly), and was decided before a fully developed body of commercial speech doctrine had emerged. Overall, the opinion is a good example of subtle, probing First Amendment analysis, wherein the court really grasps that merely labeling speech as “commercial” does not somehow magically strip away any protected expressive content.

In fact, perhaps the most important and interesting material has to do with this commercial speech analysis. The court acknowledges that the government’s policy against “disparaging” marks is targeting the expressive aspects of trademarks and not the more easily regulable “transactional” aspects (such as product information, pricing, etc.)— to look at § 2(a) otherwise would not make sense as the government is rather explicitly trying to stop certain messages because of their noncommercial aspects. And the court importantly acknowledges the Supreme Court’s admonition that “[a] consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue” ( although I might go so far as to hazard a guess that commercial speech is more important that political speech, most of the time, to most people, but perhaps I am just cynical).

The upshot of the Federal Circuit’s new view of trademarks and “commercial speech” reinforces the notion that regulations and laws that are directed toward “commercial speech” need to be very narrowly focused on the actual “commercial” message — pricing, source, etc. — and cannot veer into controlling the “expressive” aspects without justification under strict scrutiny. Although there is nothing terrible new or shocking here, the opinion ties together a variety of the commercial speech doctrines, gives much needed clarity to trademark registration, and reaffirms a sensible view of commercial speech law.

And, although I may be reading too deeply based on my preferences, I think the opinion is quietly staking out a useful position for commercial speech cases going forward—at least to a speech maximalist like myself. In particular, it explicitly relies upon the “unconstitutional conditions” doctrine for the proposition that the benefits of government programs cannot be granted upon a condition that a party only engage in “good” or “approved” commercial speech.  As the world becomes increasingly interested in hate speech regulation,  and our college campuses more interested in preparing a generation of”safe spacers” than of critically thinking adults, this will undoubtedly become an important arrow in a speech defender’s quiver.

Last July, the Eastern District of Virginia upheld the cancellation of various trademarks of the Washington Redskins on the grounds that the marks were disparaging to Native Americans. I am neither a fan of football, nor of offensive names for sports teams–what I am is a fan of free speech. Although the Redskins may be well advised to change their team name, interfering with both the team’s right to free speech as well as its property right in the registered mark is the wrong way–both legally and in principle–to achieve socially desirable ends.

Various theories have been advanced, but the really interesting part of the dispute–a topic upon which I published a paper this year–is the likelihood that the Lanham Act’s prohibition of immoral, scandalous, or disparaging marks runs afoul of the First Amendment. I was cheered to see this week that the First Amendment Lawyers Association filed an amicus brief largely along the lines of my paper. However, there were a couple of points that I still feel deserve more attention when thinking about the § 2(a) (the Lanham Act’s so-called “morality clauses”).

Trademarks Are Not License Plates

The district court tried to sidestep the First Amendment issue by declaring that the trademarks themselves are not at issue, but merely the right to register the trademarks. To reach its result, the court relied on the recent Walker case wherein the Supreme Court declared that Texas was at liberty to prevent Confederate flags from appearing on its license plates, since license plates could be considered the speech of the government.

However, there is an important distinction between license plates and trademarks. License plates are a good totally of government manufacture. One cannot drive a car on a public road without applying to the government for permission and affixing a government registration tag on the vehicle. The plate is not a blank slate upon which one may express one’s self, but is a state-issued information placard used for law enforcement purposes.

Trademarks, arising as they do from actual use, preexist federal recognition. The Lanham Act merely provides a mechanism for registering trademarks that happen to be used in interstate commerce. The federal government then chooses to recognize that trademark when contested or offered for registration.

This is a major distinction: the social field of trademarks already exists – the federal government has chosen to regulate and provide an enforcement mechanism for these property rights and speech acts when used in interstate commerce. Thus it is the market for trademarks that constitutes the forum, and not the physically recorded government register. Given that the government has interfered in a preexisting market in a way in which it protects some state-created trademark property rights, but not others, is it proper to regulate speech by virtue of its content? I think not.

Further, license plates are obviously government property to anyone who looks at them. Plates bear the very name of the state directly on their face. The system of trademark registration is a largely invisible process that only becomes relevant during legal proceedings. When the public looks at a given trademark I would argue that the state’s imprimatur is certainly one of the last things of which they would think.

Thus, a restriction on “immoral” or “disparaging” trademarks constitutes viewpoint discrimination. Eugene Volokh echoed this sentiment when he wrote on the refusal to register “Stop the Islamisation of America”:

Trademark registration … is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs … it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination.

The Lanham Act endows registrants with government-guaranteed legal rights in connection with the words and symbols by which they are recognized in society. Particularly in a globalized, interconnected society, the brand of an entity is a significant component of how it speaks to society. Discriminating against marks as “immoral” or “disparaging” can be nothing short of viewpoint discrimination.

Commercial Speech Is Protected Speech

As everyone is well aware, the First Amendment provides broad protection for a wide spectrum of speech. The definition of speech itself is likewise broad, including not only words, but also non-verbal gestures and symbols. Any governmental curtailing of such speech will be “presumptively invalid,” with the burden of rebutting that presumption on the government.

When speech is undertaken as part of commerce it does not magically lose any political, social or religious dimension it had when in a noncommercial context. Cartoons issued bearing the image of the Prophet as part of a commercial magazine are surely a political statement deserving of protection. The situation is the same if an organization adopts a logo that is derisive to a particular political or religious ideology – that publication is making a protected, expressive statement through its branding.

At first glance, one might think that defenders of § 2(a) would attempt to qualify scandalous and immoral trademarks as “obscene” and thereby render them subject to censorship. But, in McGinley the Federal Circuit explicitly refused to apply the obscenity standards from the Supreme Court to §2(a) on the grounds that the Lanham Act does not itself use the word “obscenity.” Instead, the Federal Circuit, following the TTAB, was of the opinion that “[w]hat is denied are the benefits provided by the Lanham Act which enhance the value of a mark” and that the appellant still had legal recourse under state common law. Therefore, so the court in McGinley reasoned, since the right to use the mark is not actually abridged, no expression is abridged. And this is the primary basis upon which the district court in Pro-Football built its argument that no First Amendment concerns were implicated in canceling the Redskins trademark.

This of course willfully ignores once again the notion that in intervening in the field of trademarks, and in favoring certain speakers over others, courts effectively allows the Lanham Act to amplify preferred speech and burden disfavored speech. This is true whether or not we classify the trademark right as a bundle of procedural rights (which in turn make speech competitively possible) or as pure speech directly.

That said, it’s much more in keeping with the tradition of the First Amendment to understand trademarks as a protected category of commercial speech. The Supreme Court has noted that otherwise commercial information may at times be more urgent than even political dialog, and that information relating to a financial incentive was not necessarily commercial for First Amendment purposes. “[S]ignificant societal interests are served by such speech.” This is so because even entirely commercial speech “may often carry information of import to significant issues of the day.”

Even were commercial speech not fully protected–as I believe it to be–the Supreme Court has also recognized that commercial speech may be so intertwined with noncommercial speech so as to make them inseparable for First Amendment purposes. In particular, commercial messages do more than merely provide information about the characteristics of goods and services:

[S]olicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease.

The analogy to trademarks is rather clear in this context. Although trademarks may refer to a particular product or service, that product or service is not of necessity a purely commercial object. Further, even if the product or service is a commercial object, the trademark itself can be, or can become, a symbolic referent and not a mere sales pitch. Consider, for instance, Mickey Mouse. The iconic mouse ears certainly represent a vast commercial empire generally, and specifically operate as a functional trademark for Mickey Mouse cartoons and merchandise. However, is there not much more of cultural significance to the mark than mere commercial value? The mouse ears represent something culturally – about childhood, about America, and about art – that is much more than merely a piece of pricing or quality information.

The Unconstitutional Conditions Doctrine Prevents Trading Rights for Privileges

The district court (and Federal Circuit, for that matter) have missed a very important dimension in summarily dismissing First Amendment concerns of trademark holders. These courts dismiss owners of “immoral” or “disparaging” trademarks on the belief that no actual harm is done – the mark holders still own the mark, and, as far as the court is concerned, no speech has been suppressed. However, trademark registration, in addition to providing a forum in which to speak, also provides real procedural benefits for the mark holder. For instance, businesses and individuals enjoy a nationwide recognition of their presence and can vindicate their interests in federal courts. Without the federal registration that is presumptively supplied to marks that are not “immoral” or “scandalous,” an individual can find himself attempting to protect his interests in a mark in the courts of every state in which he does business.

However, under the unconstitutional conditions doctrine even though the benefits of trademark registration are not constitutionally guaranteed rights, those benefits cannot be offered in exchange for a trademark owner’s loss of actually guaranteed rights. Thus, the tight link between trademark registration and First Amendment protections that the courts just keep ignoring.

Its also worth noting that this doctrine did not emerge in constitutional jurisprudence until after the period in which the Lanham Act was drafted. Instead, the Lanham Act era was characterized by the rights-privileges distinction–made famous by then Chief Justice of the Massachusetts Supreme Judicial Court Oliver Wendell Holmes. In McAuliffe, a police officer sued for reinstatement after he was dismissed for his participation in a political organization. In dismissing the case, Chief Justice Holmes held that “[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” This quote from Holmes captures precisely the sense in which the Federal Circuit dismisses the First Amendment concerns of mark holders. 

In contrast to this rather antiquated view, the Supreme Court has recently reaffirmed the proposition that “the government may not deny a benefit to a person because he exercises a constitutional right.” Although this principle contains exceptions, it has been applied to a wide variety of situations including refusal to renew teaching contracts over First Amendment-protected speech acts, and infringement of the right to travel by refusing to adequately extend healthcare benefits to sick persons who had not been residents of a county for at least a year.

Basically, the best defense one can offer for § 2(a) is rooted in an outmoded view of the First Amendment that is, to put it mildly, unconstitutional. We don’t shut down speakers who offend us (at least for the time being), and we should stop attacking trademarks that we find to be immoral.

Last week the International Center for Law & Economics, joined by TechFreedom, filed comments with the Federal Aviation Administration (FAA) in its Operation and Certification of Small Unmanned Aircraft Systems (“UAS” — i.e, drones) proceeding to establish rules for the operation of small drones in the National Airspace System.

We believe that the FAA has failed to appropriately weigh the costs and benefits, as well as the First Amendment implications, of its proposed rules.

The FAA’s proposed drones rules fail to meet (or even undertake) adequate cost/benefit analysis

FAA regulations are subject to Executive Order 12866, which, among other things, requires that agencies:

  • “consider incentives for innovation,”
  • “propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs”;
  • “base [their] decisions on the best reasonably obtainable scientific, technical, economic, and other information”; and
  • “tailor [their} regulations to impose the least burden on society,”

The FAA’s proposed drone rules fail to meet these requirements.

An important, and fundamental, problem is that the proposed rules often seem to import “scientific, technical, economic, and other information” regarding traditional manned aircraft, rather than such knowledge specifically applicable to drones and their uses — what FTC Commissioner Maureen Ohlhausen has dubbed “The Procrustean Problem with Prescriptive Regulation.”

As such, not only do the rules often not make sense as a practical matter, they also seek to simply adapt existing standards, rules and understandings promulgated for manned aircraft to regulate drones — insufficiently tailoring the rules to “impose the least burden on society.”

In some cases the rules would effectively ban obviously valuable uses outright, disregarding the rules’ effect on innovation (to say nothing of their effect on current uses of drones) without adequately defending such prohibitions as necessary to protect public safety.

Importantly, the proposed rules would effectively prohibit the use of commercial drones for long-distance services (like package delivery and scouting large agricultural plots) and for uses in populated areas — undermining what may well be drones’ most economically valuable uses.

As our comments note:

By prohibiting UAS operation over people who are not directly involved in the drone’s operation, the rules dramatically limit the geographic scope in which UAS may operate, essentially limiting commercial drone operations to unpopulated or extremely sparsely populated areas. While that may be sufficient for important agricultural and forestry uses, for example, it effectively precludes all possible uses in more urban areas, including journalism, broadcasting, surveying, package delivery and the like. Even in nonurban areas, such a restriction imposes potentially insurmountable costs.

Mandating that operators not fly over other individuals not involved in the UAS operation is, in fact, the nail in the coffin of drone deliveries, an industry that is likely to offer a significant fraction of this technology’s potential economic benefit. Imposing such a blanket ban thus improperly ignores the important “incentives for innovation” suggested by Executive Order 12866 without apparent corresponding benefit.

The FAA’s proposed drone rules fail under First Amendment scrutiny

The FAA’s failure to tailor the rules according to an appropriate analysis of their costs and benefits also causes them to violate the First Amendment. Without proper tailoring based on the unique technological characteristics of drones and a careful assessment of their likely uses, the rules are considerably more broad than the Supreme Court’s “time, place and manner” standard would allow.

Several of the rules constitute a de facto ban on most — indeed, nearly all — of the potential uses of drones that most clearly involve the collection of information and/or the expression of speech protected by the First Amendment. As we note in our comments:

While the FAA’s proposed rules appear to be content-neutral, and will thus avoid the most-exacting Constitutional scrutiny, the FAA will nevertheless have a difficult time demonstrating that some of them are narrowly drawn and adequately tailored time, place, and manner restrictions.

Indeed, many of the rules likely amount to a prior restraint on protected commercial and non-commercial activity, both for obvious existing applications like news gathering and for currently unanticipated future uses.

Our friends Eli Dourado, Adam Thierer and Ryan Hagemann at Mercatus also filed comments in the proceeding, raising similar and analogous concerns:

As far as possible, we advocate an environment of “permissionless innovation” to reap the greatest benefit from our airspace. The FAA’s rules do not foster this environment. In addition, we believe the FAA has fallen short of its obligations under Executive Order 12866 to provide thorough benefit-cost analysis.

The full Mercatus comments, available here, are also recommended reading.

Read the full ICLE/TechFreedom comments here.

William Buckley once described a conservative as “someone who stands athwart history, yelling Stop.” Ironically, this definition applies to Professor Tim Wu’s stance against the Supreme Court applying the Constitution’s protections to the information age.

Wu admits he is going against the grain by fighting what he describes as leading liberals from the civil rights era, conservatives and economic libertarians bent on deregulation, and corporations practicing “First Amendment opportunism.” Wu wants to reorient our thinking on the First Amendment, limiting its domain to what he believes are its rightful boundaries.

But in his relatively recent piece in The New Republic and journal article in U Penn Law Review, Wu bites off more than he can chew. First, Wu does not recognize that the First Amendment is used “opportunistically” only because the New Deal revolution and subsequent jurisprudence has foreclosed all other Constitutional avenues to challenge economic regulations. Second, his positive formulation for differentiating protected speech from non-speech will lead to results counter to his stated preferences. Third, contra both conservatives like Bork and liberals like Wu, the Constitution’s protections can and should be adapted to new technologies, consistent with the original meaning.

Wu’s Irrational Lochner-Baiting

Wu makes the case that the First Amendment has been interpreted to protect things that aren’t really within the First Amendment’s purview. He starts his New Republic essay with Sorrell v. IMS (cf. TechFreedom’s Amicus Brief), describing the data mining process as something undeserving of any judicial protection. He deems the application of the First Amendment to economic regulation a revival of Lochner, evincing a misunderstanding of the case that appeals to undefended academic prejudice and popular ignorance. This is important because the economic liberty which was long protected by the Constitution, either as matter of federalism or substantive rights, no longer has any protection from government power aside from the First Amendment jurisprudence Wu decries.

Lochner v. New York is a 1905 Supreme Court case that has received more scorn, left and right, than just about any case that isn’t dealing with slavery or segregation. This has led to the phenomenon (my former Constitutional Law) Professor David Bernstein calls “Lochner-baiting,” where a commentator describes any Supreme Court decision with which he or she disagrees as Lochnerism. Wu does this throughout his New Republic piece, somehow seeing parallels between application of the First Amendment to the Internet and a Liberty of Contract case under substantive Due Process.

The idea that economic regulation should receive little judicial scrutiny is not new. In fact, it has been the operating law since at least the famous Carolene Products footnote four. However, the idea that only insular and discrete minorities should receive First Amendment protection is a novel application of law. Wu implicitly argues exactly this when he says “corporations are not the Jehovah’s Witnesses, unpopular outsiders needing a safeguard that legislators and law enforcement could not be moved to provide.” On the contrary, the application of First Amendment protections to Jehovah’s Witnesses and student protesters is part and parcel of the application of the First Amendment to advertising and data that drives the Internet. Just because Wu does not believe businesspersons need the Constitution’s protections does not mean they do not apply.

Finally, while Wu may be correct that the First Amendment should not apply to everything for which it is being asserted today, he does not seem to recognize why there is “First Amendment opportunism.” In theory, those trying to limit the power of government over economic regulation could use any number of provisions in the text of the Constitution: enumerated powers of Congress and the Tenth Amendment, the Ninth Amendment, the Contracts Clause, the Privileges or Immunities Clause of the Fourteenth Amendment, the Due Process Clause of the Fifth and Fourteenth Amendments, the Equal Protection Clause, etc. For much of the Constitution’s history, the combination of these clauses generally restricted the growth of government over economic affairs. Lochner was just one example of courts generally putting the burden on governments to show the restrictions placed upon economic liberty are outweighed by public interest considerations.

The Lochner court actually protected a small bakery run by immigrants from special interest legislation aimed at putting them out of business on behalf of bigger, established competitors. Shifting this burden away from government and towards the individual is not clearly the good thing Wu assumes. Applying the same Liberty of Contract doctrine, the Supreme Court struck down legislation enforcing housing segregation in Buchanan v. Warley and legislation outlawing the teaching of the German language in Meyer v. Nebraska. After the New Deal revolution, courts chose to apply only rational basis review to economic regulation, and would need to find a new way to protect fundamental rights that were once classified as economic in nature. The burden shifted to individuals to prove an economic regulation is not loosely related to any conceivable legitimate governmental purpose.

Now, the only Constitutional avenue left for a winnable challenge of economic regulation is the First Amendment. Under the rational basis test, the Tenth Circuit in Powers v. Harris actually found that protecting businesses from competition is a legitimate state interest. This is why the cat owner Wu references in his essay and describes in more detail in his law review article brought a First Amendment claim against a regime requiring licensing of his talking cat show: there is basically no other Constitutional protection against burdensome economic regulation.

The More You Edit, the More Your <sic> Protected?

In his law review piece, Machine Speech, Wu explains that the First Amendment has a functionality requirement. He points out that the First Amendment has never been interpreted to mean, and should not mean, that all communication is protected. Wu believes the dividing lines between protected and unprotected speech should be whether the communicator is a person attempting to communicate a specific message in a non-mechanical way to another, and whether the communication at issue is more speech than conduct. The first test excludes carriers and conduits that handle or process information but have an ultimately functional relationship with it–like Federal Express or a telephone company. The second excludes tools, those works that are purely functional like navigational charts, court filings, or contracts.

Of course, Wu admits the actual application of his test online can be difficult. In his law review article he deals with some easy cases, like the obvious application of the First Amendment to blog posts, tweets, and video games, and non-application to Google Maps. Of course, harder cases are the main target of his article: search engines, automated concierges, and other algorithm-based services. At the very end of his law review article, Wu finally states how to differentiate between protected speech and non-speech in such cases:

The rule of thumb is this: the more the concierge merely tells the user about himself, the more like a tool and less like protected speech the program is. The more the programmer puts in place his opinion, and tries to influence the user, the more likely there will be First Amendment coverage. These are the kinds of considerations that ultimately should drive every algorithmic output case that courts could encounter.

Unfortunately for Wu, this test would lead to results counterproductive to his goals.

Applying this rationale to Google, for instance, would lead to the perverse conclusion that the more the allegations against the company about tinkering with its algorithm to disadvantage competitors are true, the more likely Google would receive First Amendment protection. And if Net Neutrality advocates are right that ISPs are restricting consumer access to content, then the analogy to the newspaper in Tornillo becomes a good one–ISPs have a right to exercise editorial discretion and mandating speech would be unconstitutional. The application of Wu’s test to search engines and ISPs effectively puts them in a “use it or lose it” position with their First Amendment rights that courts have rejected. The idea that antitrust and FCC regulations can apply without First Amendment scrutiny only if search engines and ISPs are not doing anything requiring antitrust or FCC scrutiny is counterproductive to sound public policy–and presumably, the regulatory goals Wu holds.

First Amendment Dynamism

The application of the First Amendment to the Internet Age does not involve large leaps of logic from current jurisprudence. As Stuart Minor Benjamin shows in his article in the same issue of the U Penn Law Review, the bigger leap would be to follow Wu’s recommendations. We do not need a 21st Century First Amendment that some on the left have called for—the original one will do just fine.

This is because the Constitution’s protections can be dynamically applied, consistent with original meaning. Wu’s complaint is that he does not like how the First Amendment has evolved. Even his points that have merit, though, seem to indicate a stasis mentality. In her book, The Future and Its Enemies, Virginia Postrel described this mentality as a preference for a “controlled, uniform society that changes only with permission from some central authority.” But the First Amendment’s text is not a grant of power to the central authority to control or permit anything. It actually restricts government from intervening into the open-ended society where creativity and enterprise, operating under predictable rules, generate progress in unpredictable ways.

The application of current First Amendment jurisprudence to search engines, ISPs, and data mining will not necessarily create a world where machines have rights. Wu is right that the line must be drawn somewhere, but his technocratic attempt to empower government officials to control innovation is short-sighted. Ultimately, the First Amendment is as much about protecting the individuals who innovate and create online as those in the offline world. Such protection embraces the future instead of fearing it.