Speech Is Important, But Not Everything Important Is Speech: A Close Look At the Cable Industry's Fight With the FCC

[Commentary] The First Amendment and the principles of free expression are fundamental to the proper functioning of our society and they are a bedrock of the law. The fact that this sentiment is well-worn to the point of cliche doesn't make it any less true. Speech and other expressive conduct must be protected, even when it's bad speech, and even when the short-term consequences of allowing it seem bad too--because the consequences of having the government decide what kinds of speech are acceptable and what kinds of speech are not are even worse. But the importance of free expression has unfortunately provided some telecom companies with rhetorical cover in their attempt to avoid all oversight, and with aid and comfort from some in the judiciary, they've attempted to characterize business activities that are not expressive as "speech" and to enlist the Bill of Rights in the battle against consumer interests.

Free speech is important, but that doesn't mean that everything important is "speech." The First Amendment protects speech and other expression, but not every business activity that involves moving data from one place to another, or the transmission of photons or electrons or electromagentic waves. When cable and telecoms companies use First Amendment arguments to undermine the public interest, they don't just harm the public interest but the very free expression principles they are claiming to defend. If you broaden the First Amendment's scope of protection to the point of meaninglessness, to where it covers nearly every aspect of the digital economy, it will become meaningless, and viewed as just another argument that some companies make to excuse and explain their behavior. Defenders of free expression cannot allow this to happen.