The controversy started last week, when Verizon (one of the two largest telecom carriers in the US), refused to make their network available for a text message program advocating abortion. The program allows people to sign up for messages if they choose, and is a completely voluntary exercise of choice for consumers. Verizon would have earned (some) money from the business, but instead refused it.
The move led to a storm of protests. As NYT observed:
Legal experts said private companies like Verizon probably have the legal right to decide which messages to carry. The laws that forbid common carriers from interfering with voice transmissions on ordinary phone lines do not apply to text messages.
The dispute is a skirmish in the larger battle over the question of “net neutrality” — whether carriers or Internet service providers should have a voice in the content they provide to customers.
The idea that a telecom carrier will refuse to carry messages based on content is incredibly scary. Could they decide to broadcast messages sent by the Democratic party, but not Republicans? Christian messages but not Jewish? Everybody has a point of view that could be viewed as “controversial or unsavory” to someone else. Apparently the First Amendment does not in itself prohibit such censorship, but we should not accept such an action, which has been likened to the mass censorship of political speech by the Chinese government, no matter whether the carrier agrees with the content or not. Laws that forbid common carriers from interfering with voice transmission on phone lines do not apply to text messages. It’s time to change that law to protect free speech, no matter how it is communicated.
In a swift turn-around, Verizon reversed its decision and decided to carry the message. The Verizon public policy blog attributed the reversal to a dusty, internal policy, but remained ambivalent about whether any such policy will continue to exist in the future.
In the US, newspapers have the right to accept or reject any advertisement for decades. Newspapers are a publishing medium, clearly protected by the First Amendment, as they are liable for what they publish. Radio stations have a right to reject and censor what spots and ads they run (an antiwar campaign was turned down during Vietnam and the court upheld the station’s right to refuse). What about search engines like Google and Yahoo? In February this year, a federal judge settled that question when it gave the same right to search engines as that of newspapers: thus, Google can refuse to accept any ad, without any explanations required.
Free speech and net neutrality advocates like Timothy Karr on Huffington Post are lobbying to convene hearings on telecom censorship policies. If the telecom companies were purely private enterprises, a ruling either way might have been simpler. Being a government regulated industry adds further complications, as Richard Koman argues.
One of the earliest advocates (I could find) who saw all this coming back in 1995, was Nicholas Johnson in the Wired Magazine:
We find ourselves a little late in the free speech day, having already lost our rights to speak through dominant newspapers, broadcast stations and cable. But insisting on the total separation of content and conduit as the Internet is privatized may still be our best hope. It’s the only free speech forum left for those of us without $200 million in spare pocket change to buy our own newspaper or TV station.
The court has already ruled that Google is not your public square. Are Verizon and AT&T public squares?