Court case

Twenty years ago, on June 26, 1997, the Supreme Court issued a landmark decision and unanimously overturned congressional legislation that made it unlawful to transmit "indecent" material on the Internet if that content could be viewed by minors. The justices ruled that the same censorship standards being applied to broadcast radio and television could not be applied to the Internet.

"The record demonstrates that the growth of the Internet has been and continues to be phenomenal," the high court concluded. "As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it." The legal wrangling over the Communications Decency Act happened when the commercial Internet was primitive compared to today. The ACLU says it didn't even have a website when the CDA was signed into law in 1996. And the ACLU's lawyers on the case had never even used the Internet, either.

Legal challenges to the Federal Communications Commission's business data services (BDS) reforms have been consolidated in the US Court of Appeals for the Eighth Circuit. Petitions to deny some or all of the FCC's BDS report and order updating the framework for regulating business data services had been filed in three separate federal appeals courts. Those appeals came from CenturyLink, Citizens Telecommunications Company of Minnesota and a consortium of telecoms including Sprint.

The DC Circuit is the one with primary jurisdiction over telecommunications, but in the case of multiple filings, the US Judicial Panel on Multidistrict Litigation holds a lottery to determine the venue. CenturyLink told the US Court of Appeals for the Fifth Circuit that the FCC's regulation of rates on DS1 and DS3 service in areas deemed noncompetitive was arbitrary, capricious, an abuse of discretion and otherwise illegal. It said the FCC forced those price caps on competitive carriers despite evidence the cost of service had actually gone down.

[Commentary] On June 19, 2017, the Supreme Court of the United States used an unlikely vehicle to expand the scope of First Amendment protection for Internet users. In Peckingham v. North Carolina, speaking for five members of the Court, Justice Anthony Kennedy started with the general principle that the Court has always recognized the “fundamental principle of the First Amendment ... that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” This is the second important Supreme Court opinion addressing the role of the Internet in American life. The first, Reno v. ACLU, was issued in 1997, during the Internet’s dial-up era. Its depiction of the Internet as a medium deserving the same high degree of First Amendment protection as traditional print media played an essential role in the legal framework for the Internet’s evolution over the last two decades. Justice Kennedy’s Peckingham decision consciously builds upon Reno’s recognition of the Internet as offering “relatively unlimited low-cost capacity for communication of all kinds,” specifically citing how people use Facebook (“users can debate religion and politics with close friends ... or share vacation photos”), LinkedIn (“users can look for work [or] advertise for employees”) and Twitter (“users can petition their elected representatives and otherwise engage with them in a direct manner”) as examples. Justice Kennedy stressed the importance of insuring that the law leave ample room for the further evolution of the Internet’s platform for free expression.

[Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation]

The Supreme Court extended trademark protection to words and names that may be offensive, ruling June 19 that the 1st Amendment right to free speech allows an Asian American band to call itself the Slants. The unanimous decision will also likely preserve the trademarked and controversial name of the Redskins, Washington’s pro-football team.

In recent years, such trademarked names have come under attack as racially offensive. But in June 19’s decision, the high court struck down part of a 1946 federal law that barred trademarks that may “disparage” people or groups. The justices said this provision violates “a bedrock 1st Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” said Justice Samuel A. Alito Jr. He said trademarks are “private speech,” not the government speaking. And as such, the law may not punish words or expressions simply because they are offensive. “We have said time and time again that the ‘public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,’” Justice Alito said in the case of Matal vs Tam.

The Supreme Court struck down a North Carolina law that bars convicted sex offenders from Facebook, Twitter and other popular sites. The justices ruled unanimously in favor of North Carolina resident Lester Packingham Jr.

His Facebook boast about beating a traffic ticket led to his conviction for violating a 2008 law aimed at keeping sex offenders off internet sites children might use. The court rejected the state’s argument that the law deals with the virtual world in the same way that states keep sex offenders out of playgrounds and other places children visit. “In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” Justice Anthony Kennedy wrote in his majority opinion.

In a very short one page decision, the US Court of Appeals rejected the requests filed by public interest groups to stay the effect of the Federal Communications Commission’s decision to reinstate the UHF discount. For the foreseeable future, this decision will free many broadcast television groups to acquire more television stations as UHF stations (which most TV stations now are) count for only half their audience reach in assessing compliance with the 39% limit on the national audience share that any TV owner can have.

While, contrary to some press reports, this does not signal the Court’s final approval of the FCC’s decision to reinstate the discount, it does suggest the direction which the Court is likely to take in its assessment of this Commission decision. This decision does not end the case. The public interest groups can continue to pursue their appeal though full briefing and oral argument and a full court decision. However, the rejection of the stay certainly increases the odds that the FCC will ultimately prevail in its defense of the reinstatement of the UHF discount.

Washington (DC) was quick to respond to the court decision not to block the Federal Communications Commission's reimposition of the UHF discount, at least while it decides a court challenge to that decision under FCC chairman Ajit Pai. The decision allows deals like the Sinclair-Tribune merger to proceed, which without the discount would have exceeded the FCC's 39% cap on national audience reach.

"The FCC’s order eliminating the UHF discount [voted last fall by a Democratic majority and against the Republicans' dissent] was made without a comprehensive review of broadcast media ownership rules. [The National Association of Broadcasters] supports the Court’s decision denying the stay request.” Chairman Pai had said the discount decision by the Democrats was reversed because it did not also include considering the impact on the 39% cap. “The UHF discount has long outlived its usefulness,” said former FCC chairman Michael Copps, currently a special adviser to Common Cause. “Reinstating it was a huge, unwarranted gift to Big Broadcast. So it is disappointing that the court did not rein in the broadcast-friendly majority at the FCC. We remain committed to halting the wave of media consolidation the FCC majority has sought to unleash.”

The US Court of Appeals for the DC Circuit denied the emergency stay motion filed by public interest groups that sought to prevent the Federal Communications Commission from implementing its decision to reinstate the so-called UHF discount that the groups claim will “make it easier for the nation’s largest television ownership groups to acquire additional stations, and crowd out diverse and local voices.” A stay would have prevented the UHF discount from going into effect while the court hears the case on its merits. Restoring the UHF discount to its national ownership rule, in effect, raises the limit on household coverage of TV station groups from 39% to 78%.

The decision is good news for Sinclair Broadcast Group, which needs it to implement its proposed agreement to buy Tribune Media for $3.9 billion and assumption of debt. That deal would increase Sinclair's household reach to 72%. The FCC had urged the court to deny the stay, saying the public interest groups’ request fell "far short" of meeting the criteria for a stay.

[Commentary] My cousin Charlie is serving time in an upstate New York prison. On June 13, a federal appeals court struck down several provisions in the Federal Communications Commission’s recent decisions to cap the cost of prison- and jail-phone calls. This ruling is a real blow to my family and many others like mine across the country. It’s also a huge step backward.

In late 2015, the FCC voted to reduce the steep cost of prison-phone calls charged to incarcerated people and their families. Many inmates and their families had spent years fighting to cap these calls, which can run to more than a dollar per minute. When the FCC voted to implement the caps I felt a sense of relief knowing that Charlie would be able to afford to call my grandmother on a more regular basis without worrying that he’d deplete his commissary on just phone calls. But soon after these rules were adopted the prison-phone industry sued the agency. In February 2017, Donald Trump’s newly appointed FCC chairman, Ajit Pai, said the agency’s lawyers wouldn’t defend key aspects of these rules in court — paving the way for Tuesday’s decision.

[Commentary] On June 12, the 9th Circuit became the latest court to block President Donald Trump's revised travel ban, his second attempt to limit travel from six majority Muslim nations. The decision was not a surprise, as the Trump administration has not had much luck in the courtroom. But its timing – just after former FBI director James Comey testified before Congress and just before Attorney General Jeff Sessions does – reveals that even in the Trump era, there are places where words still matter.

Since Trump launched his presidential bid two years ago, the power of words and facts has been in doubt. As candidate and now president, Trump has lavished Americans with promises that he immediately broke. He has spread lies and conspiracies that are breathtaking in their obvious falseness. He has hurled accusations, threats and slurs that would have been unimaginable for any presidential candidate in the last several decades. And despite – or maybe because – of it all, he won the presidency. So Americans could be forgiven for thinking we now live in a world where facts, promises and words no longer matter, where the president can say whatever he likes without consequences. Only it turns out, there are still some situations where words matter a great deal.

[She is an assistant professor at the Miller Center of Public Affairs and a research associate at the US Studies Centre at the University of Sydney.]