Tuesday, June 19, 2012

Supreme Court Lets Technology-Neutral Speech Decision Stand

On June 18, the U.S. Supreme Court denied review in the case of Nelson v. Time Warner Cable. This leaves standing an important decision by the U.S. Court of Appeals for the 5th Circuit, Time Warner Cable v. Hudson (2012). 

Earlier this year, the 5th Circuit struck down provisions in Texas's statewide video franchising law that subjected certain cable providers to extra regulatory burdens from which new entrant competitors remained free. Significantly, Hudson's reasoning rested on First Amendment grounds.

In my February FSF Perspectives paper, "The First Amendment for the Digital Age: A Case for Treating Modern Technologies Equally," I discuss aspects of Hudson and its implications for the future of First Amendment jurisprudence:
[T]he Fifth Circuit took seriously the idea that free speech protections belong to cable video service providers, just like other speakers. Even more significantly, it made clear that the First Amendment prohibits government regulations that selectively impose burdens on certain competing video service providers, but not others. In fact, the Fifth Circuit's decision appears to be part of a growing trend in which federal courts are no longer willing to approve departures from equal application of free speech protections, regardless of the underlying technology at issue. Time Warner Cable v. Hudson also offers a window into the future of free speech jurisprudence for modern technologies – or at least it should. In particular, the case hopefully will be a precedent that will inform a reinvigorated and principled First Amendment jurisprudence for the digital age – a jurisprudence that treats with equal respect the speech rights of all speakers using all technologies.
Perhaps the Supreme Court's imminent decision in Fox v. FCC II – also discussed in a blog post at the beginning of the Court's term – will offer further developments of First Amendment doctrine regarding speech rights relying on different media technologies.