Back in July, we covered Verizon's argument that network neutrality regulations violated the firm's First Amendment rights. In Verizon's view, slowing or blocking packets on a broadband network is little different from a newspaper editor choosing which articles to publish, and should enjoy the same constitutional protection.

Plenty of folks disagree with Verizon's view. On Thursday a number of public interest groups, academics, and former commissioners of the Federal Communications Commission filed amicus briefs taking issue with Verizon's constitutional argument. Verizon, they argued, was ignoring the fundamental distinction between Verizon's own speech and its role as a conduit for the speech of others.

Verizon clearly has First Amendment rights over content it publishes itself, the groups concede. The First Amendment does not apply, however, when Verizon is merely transmitting the content of third parties. Moreover, these groups point out, Verizon itself has disclaimed responsibility for its users' content when it was convenient to do so, making its free speech arguments ring hollow.

Dueling analogies

Verizon is in the middle of a legal fight against the open Internet rules the Federal Communications Commission adopted in 2010. In addition to arguing that Congress never gave the FCC authority to regulate network neutrality, Verizon also claimed that forcing Verizon to abide by network neutrality rules violated the firm's First Amendment right to free speech.

The courts have long held that the First Amendment limits the government's ability to require "fairness" in certain media. For example, the courts have said that the government cannot require newspaper publishers to print rebuttals to its editorials, nor can it force the organizer of a parade to allow floats that do not fit with the organizer's vision.

In July, Verizon told the United States Court of Appeals for the DC Circuit that the same logic applies to its own broadband network. In Verizon's view, blocking or throttling content is a constitutionally protected editorial decision. Some libertarian think tanks filed a brief backing Verizon's argument that same month. But on Thursday, three different amicus briefs were filed taking exception to Verizon's argument.

"Verizon and other broadband providers are more akin to telephone companies," argues a brief filed by the Center for Democracy and Technology and signed by a group of law professors. "Like the anti-discrimination obligations that apply to those companies, the Rules do not restrict or compel anyone’s speech but instead protect everyone’s speech by requiring that it be transmitted without interference."

CDT warns that accepting Verizon's argument would "call into question all of common carriage law, and threaten to give any actor with the physical or technical ability to block speech—be it a telephone company or FedEx—a First Amendment right to do so."

That argument is echoed in another brief filed by Clinton-era FCC chief Reed Hundt and signed by several other former FCC commissioners. "There is nothing inherently expressive about transmitting others’ data packets, at a subscriber’s direction, over the Internet," the commissioners argue. And in their view, that means that regulating an ISP's routing policies does not raise First Amendment issues.

Having it both ways?

Indeed, CDT points out that Verizon itself has emphasized its role as a passive conduit when it suits the firm's purposes. A decade ago, when facing off in court against the Recording Industry Association of America, Verizon told a court that "the Internet service provider performs a pure transmission or 'conduit' function." This role, the firm argued, "is analogous to the role played by common carriers in transmitting information selected and controlled by others. Traditionally, this passive role of conduit for the expression of others has not created any duties or liabilities under the copyright laws."

Two key provisions of federal law—Section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act—give ISPs broad immunity for content they transmit on behalf of their users. Verizon and other ISPs have relied heavily on these legal safe harbors to ward off liability for copyright infringement, defamation, and other harms.

But CDT says Verizon can't have it both ways. If Verizon is going to claim ISPs are "passive conduits" for copyright purposes, then in CDT's view that implies that its routing decisions cannot be "active" enough to deserve protection under the First Amendment.

Indeed, Hundt's brief notes that Verizon has endorsed the idea of a neutral Internet as recently as 2010. "The minute that anyone, whether from the government or the private sector, starts to control how people access and use the Internet would be the beginning of the end of the Net as we know it," reads a 2010 joint statement from Verizon and Google. "When a person accesses the Internet, he or she should be able to connect with any other person that he or she wants to."

Hundt argues that Verizon's arguments are "at odds with common sense, with settled First Amendment law, and with the legal and societal understandings that Verizon has encouraged and benefited from." Now we'll have to wait and see if the courts agree.