The Deeply Baked First Amendment Rights and Limited Responsibilities of Information Service Providers

The network neutrality tennis match has been called in favor of the Republican Information Service team over Network Neutrality Democrats. Ventures providing broadband Internet access have no obligation to operate neutrally. And they have robust, unimpeachable First Amendment rights.

Information Service Providers, have every legal right to act as unneutral and biased as they want to be. That means no one—in a personal capacity, or on behalf of the federal government—can sanction participants in the Internet ecosystem on grounds they aren’t being fair and balanced, to repeat a past slogan.  They hold themselves out as family friendly, truth agents, and block (censor!) any content they deem harmful to children, snowflakes, wokeheads, anti-wokeheads, et al.

This may come as a newsflash to some, but it should not for anyone with a baseline sense of what the First Amendment protects. Someone surely in the know, is upcoming FCC Chairman Brendan Carr. Yet he appears to have promised President Trump and Elon Musk that the FCC, under his leadership, will push the envelope on official disregard for the First Amendment.

Surely Chairman Carr knows the FCC has no statutory authority to punish broadcasters, social networks, or broadband operators from being woke, too liberal, anti-Trump, anti-Musk and whatnot.

Back in the day, First Amendment advocates did not cleave on a Democrat/Republican fulcrum. Now it appears that people who should know and embrace the First Amendment seem clueless.

Unintended Consequences When the FCC Cannot Use Its Expertise and Respond to Changed Circumstances

          The conservative majority in the Supreme Court has worked tirelessly to prevent regulatory agencies from using their expertise to assess how changed circumstances affect statutory authority.  See, e.g., Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024); available at: https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf; (overruling Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); available at: https://supreme.justia.com/cases/federal/us/467/837/.       

          While I appreciate that the FCC can overreach, I worry that the Court has blithely ignored two serious problems it has created:

1)       It looks like the impact of non-deference forecloses even independent regulatory agencies, like the FCC, from interpreting laws that Congress did not, or could not future proof.  For example, the last major amendment to baseline telecommunications law occurred in 1996, with no assessment of how broadband and the Internet fundamentally change information, communications, and entertainment markets.

          Rather than defer to the FCC’s interpretation of ambiguous statutory authorization, the Court requires explicit and properly tailored legislation.  Congress has developed a loathsome reputation for not assessing what legislative amendments and additions are necessary and overdue.  If Congress predictably fails to act, then obsolete and quite probably harmful statutory language persists.

2)       Court appears more inclined to use non-deference as a basis for preventing regulatory agencies from expanding jurisdiction to address new and potentially severe quandaries.  It is easy to reverse an expansive or re-regulatory initiative as the 6th Circuit Court of Appeals did in its rejection of the Democratic majority FCC’s effort to interpret broadband access as a telecommunications service. See https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0002p-06.pdf.

          Going forward, will courts apply non-deference to regulatory expansion clearly responding to a problem, which not addressed would trigger severe, quantifiable harm?  

          For example, the FCC has limited and ambiguous authority to assess the environmental impacts of telecommunications service providers.  See https://www.fcc.gov/general/nepa-faq. Reviewing courts and sponsored advocates already consider the scope of FCC space environment oversight quite limited, See, e.g., https://law.justia.com/cases/federal/appellate-courts/cadc/22-1337/22-1337-2024-07-12.html; https://techfreedom.org/fcc-lacks-statutory-authority-and-expertise-for-outer-space-activities/, despite the irrefutable fact that spacecraft reentry has significant, adverse impact on the earth’s atmosphere and the pace of global warming. See, e.g., https://indico.esa.int/event/493/timetable/?view=standard_inline_minutes.

          The vast increase in space launches and injection of toxic gases and particles, including aluminum oxide, from space objects reentering earth’s atmosphere raise questions about future sustainability of space and the impact of on earth’s atmosphere. Even the complete vaporization of space objects appears to have potentially hazardous impacts on the environment below. “In a series of high-altitude research flights over Alaska and the U.S. Midwest in March and April, researchers sampled stratospheric air using specialized mass spectrometers. They discovered surprising amounts of many metals commonly used in rockets and satellites, often in ratios mirroring those found in specific high-performance aerospace alloys. The investigation revealed that the metals are accumulating within sulfuric acid particles, which constitute most of the stratosphere’s particulates and influence our world’s ozone layer and climate.” Leonard David & Lee Billings, Space Junk Is Polluting Earth’s Stratosphere with Vaporized Metal, Scientific American (Oct. 26, 2023); https://www.scientificamerican.com/article/space-junk-is-polluting-earths-stratosphere-with-vaporized-metal/.

          Would any reviewing court affirm a decision of the FCC to expand its regulatory oversight and require space ventures to assess the environmental impact of its vastly expanded launch and spacecraft vaporization activities?  I do not think so, particularly for any venture led by Elon Musk. See https://ehtrust.org/federal-court-rules-in-favor-of-fcc-space-x-can-launch-thousands-of-satellites-without-environmental-review/

          What court would risk being overturned by the Supreme Court for considering it rational and consistent with statutory authority for the FCC to make some assessment of the impact on earth from toxic emissions above?