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.
Corn-Revere 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 the move.
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 writes 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 classifications."
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.