Municipal Broadband Networks Are Not a Threat to the First Amendment

Commissioner Michael O'Rielly has been a long opponent of Municipal Broadband Networks

FCC Commissioner Michael O’Rielly has been a long time opponent of municipal run networks.

Last week, Motherboard published an article denouncing a speech made by FCC Commissioner Mike O’Rielly, at this year’s “Free Speech America Gala” held by the Media Institute. In this speech, O’Rielly outwardly attacked municipal owned networks for impinging upon users first amendment rights. The commissioner’s exact words were “In addition to creating competitive distortions and misdirecting scarce resources that should go to bringing broadband to the truly unserved areas, municipal broadband networks have engaged in significant First Amendment mischief.”

He goes on to attack Chatanooga, TN and Wilson, NC for their acceptable use policies (AUP), accusing them of “prohibiting users from transmitting content that falls into amorphous categories like “hateful” or “threatening”, and claiming that the terms are “practically impossible to interpret objectively, and are inherently up to the whim of a bureaucrat’s discretion. How frightening.”

As a proponent of municipal broadband, and an Internet service provider (ISP) for Leverett, MA, OTELCO questions Commissioner O’Rielly’s statement.

Municipal broadband networks are a testament to how local government strives to provide their citizens with the best opportunities possible. These cities and towns came together to provide a service that big ISPs wouldn’t and small ISPs couldn’t. Instead of waiting for change to happen they acted in the best interest of their communities. For Commissioner O’Rielly or anyone for that matter, to turn around and accuse them of trying to obstruct First Amendment rights is absurd.

Professor Enrique Armijo’s Perspective

In O’Rielly’s speech, he cites Professor Enrique Armijo of the Elon University’s School of Law as a source for his claims. Professor Armijo has written a lot on the topic of media and Internet law, and how it intertwines and deviates from the First Amendment.  In short, Armijo believes that the conditions laid out in these AUPs “are impermissibly restricting carriage of a willing user’s right to transmit protected speech over the municipalities’ networks.” In his opinion, the local government employee(s) charged with upholding these conditions “will likely err on the side of suppressing speech, whether due to lack of legal training or general risk aversion.”( Armijo’s thoughts can be found here “Perspectives from FSF Scholars”)

In 2015, when the FCC was made aware of a supposed threat poised by municipal networks, they chose to take no stance.

Of course Armijo, nor O’Rielly for that matter, never give a clear example of a time this actually happened, most likely because it never has. Christopher Mitchell, a community broadband expert, and Director of the Institute for Local Reliance told Motherboard that “there is no history of municipal networks censoring anyone’s speech.”

During the time Armijo’s perspectives were published, Commissioner O’Rielly was a part of the proceedings Professor Armijo weighed in on. And though, according to a statement issued on March 12th, 2015, the commissioner was opposed to “any communications service by a government entity” he did not once mention that he thought said services were a threat to First Amendment rights.  What’s more, in his speech last week O’Rielly stated that the “content based restrictions” made by state-owned networks would “never pass muster under strict scrutiny”, an interesting statement coming from someone who had the chance to insight such scrutiny, yet said nothing.

Acceptable Use Policies

Let’s take a closer look at what exactly Armijo and O’Reilly are contesting. An acceptable use policy, acceptable usage policy, or a fair use policy is a set of rules that users of service agree to follow. These conditions prohibit certain activities, such as breaking the law or harming others. They are created to protect users and the provider. If a user were to break the agreement, the provider would be able to suspend, or even end the user’s service. AUPs, and the like, are a common practice. More than likely, everyone has agreed to follow one at some point or another.

Here are two excerpts from AUPs, one from the largest ISPs in the country, and the other, the AUP of a municipal owned network. For the sake of transparency, we have included OTELCO’s AUP, which is also the standing AUP for the town of Leverette, MA’s municipal network.  These AUP’s are pages long, so again these are just excerpts that cover acceptable speech. If you are interested in reading the AUPs in entirety links have been provided.

 

 

 

 

Verizon

 

(e) post off-topic information on message boards, chat rooms or social networking sites; (f) engage in conduct that is defamatory, fraudulent, obscene or deceptive;……(j) use the Service to violate any rule, policy or guideline of Verizon; (k) use the service in any fashion for the transmission or dissemination of images containing child pornography or in a manner that is obscene, sexually explicit, cruel or racist in nature or which espouses, promotes or incites bigotry, hatred or racism; or in a manner that is obscene, sexually explicit, cruel or racist in nature or which espouses, promotes or incites bigotry, hatred or racism”

 

Islesboro Municipal Broadband (town of Islesboro ME)  

The IMB and its contractors do not track usage, except to monitor connectivity, test, repair or detect capacity issues. All Subscriber’s and users must respect and adhere to local, state, federal and international laws.

 

Therefore any of the following is considered a violation of the terms of this agreement:

·         Using the IMB Services to conduct or participate or post materials related to illegal activities or soliciting others to use or participate in such activities

·         Invading the privacy of any individual or stalking, harassing or otherwise violating the rights of others

·         Sending harassing, obscene and/or other threatening communications to others via email or other similar social media applications, or transmitting via any other communications service

 

OTELCO 1. Unlawful Acts: Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.

 

9. Knowingly engaging in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on the OTELCO network or on another provider’s network.

 

As you can see for yourself, there is very little difference in these AUPs, private or municipal. All of these AUP’s are asking the same things from their users: don’t break the law, don’t say cruel things to others, and don’t prevent other people from using the Internet. Most of these things are just basic human decencies.

Of course, the problem Armijo and O’Rielly have is not with the private sector. Clearly, they think it is perfectly fine for privately owned ISPs to mandate speech over their networks, and why not? The First Amendment doesn’t apply to the private sector, only to the government. Of course, there are some other interesting points about the First Amendment that both the professor and the commissioner didn’t mention.

Legal Precedent

For starters, the government is allowed to put limits, to a certain degree, on the time place and manner of speech. This is especially relevant when the place is government property. A municipal owned network is a form of government property, therefore municipalities are within their rights to create a policy that prohibits certain speech or actions on the network.

The constitution over a flag with a gavel on top of it.

Commissioner O’Rielly has accused municipalities of threatening the constitutional rights of their network users.

The government also has the right to limit certain types of speech, including incitement, defamation, fraud obscenity, child pornography, fighting words, and threats. This legal precedent is often haughtily debated in courts of law. Unfortunately, racist, sexist, and bigoted speech are not covered by this. That is probably why municipal AUPs don’t directly mention those types of speech, whereas private ISPs do. A clear effort being made on the municipality’s part to uphold its citizens First Amendment rights.

Defending the Rights of Municipalities

The fact that O’Rielly is suddenly concerned about this so-called threat to the First Amendment would be laughable if it wasn’t so concerning. Studies done on the supposed threat to freedom of speech posed by municipalities are full of speculation. ISPs need to create acceptable use policies to protect their users and their network. Municipal owned networks are not doing anything that a normal ISP wouldn’t do, and they clearly have a right to do so.

Commisioner O’Rielly has always dismissed the need for municipal broadband networks, favoring private ISPs instead. It appears, he doesn’t understand that these municipalities are fulfilling a need that the private sector isn’t able to, so his statements made last week were unacceptable.

OTELCO stands with municipalities in their efforts to improve broadband in any way possible. We are willing to go above and beyond to help communities reach their broadband goals, as an ISP or just as a consultant along the way. We do not think that municipal-run broadband networks pose a threat to private citizens in any way.

If you would like to learn more about municipal broadband and the best practices in creating municipal-run networks, please download our free Municipal Broadband Guide.

Download OTELCO's Free Municipal Broadband Guide