First Amendment attorney Robert Corn-Revere warns the FCC
that reclassifying broadband as a Title II common carrier service would be an
attempt "to change the level of First Amendment protection for a medium
simply by changing its regulatory definition," which he says it has
limited, if any, authority to do.
He argues that the recent Citizens United decision on
corporate political speech offers clues to the High Court's disinclination
toward Constitutional gerrymandering.
If the FCC does reclassify broadband in the wake of the
BitTorrent decision, it is expected to result in a protracted legal fight over
In a paper being published by The Media Institute,
Corn-Revere, a partner with Davis Wright Tremaine, likens the move to
"Congress or the FCC [imposing] indecency regulations and other public
interest obligations on cable operators simply by reclassifying them as broadcasters."
He says that the Supreme Court has signaled its respect for
the full first amendment rights of new media, most recently in the majority opinion
in Citizens United. While he concedes that was a close and controversial
decision as a matter of politics and policy, he says the First Amendment
findings suggest the court would "limit any attempt to expand FCC
jurisdiction over new media simply by manipulating regulatory
He points to language from Justice Kennedy, writing for the
majority in the case, that "we must decline to draw, and then redraw,
constitutional lines based on the particular media or technology used."
Corn-Revere is a veteran First Amendment attorney, having
argued, and won, the Playboy case
before the High Court and represented CBS in appeal of the Super Bowl half-time
show fine. The Institute is a Washington-based First Amendment think tank
backed by a number of media companies.