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In Short

The Situation: The Federal Communications Commission ("FCC") under President Biden is likely to revive Obama-era net neutrality rules repealed by President Trump's FCC.

The Issue: Net neutrality raises First Amendment questions that have yet to be addressed by the Supreme Court, although in 2017, then-D.C. Circuit Judge Kavanaugh concluded that the Obama-era net neutrality rules violated the First Amendment.

Looking Ahead: The First Amendment is likely to play a key role in any proceeding to revisit the FCC's net neutrality rules and in any subsequent litigation.

2015 Net Neutrality Rules

Net neutralitythe principle that broadband internet access service providers should transmit all internet content equallyhas long prompted legal and policy debate, and the federal government's posture on the issue has shifted several times during the past decade. After several attempts to impose net neutrality during the Bush and Obama administrations, the FCC adopted net neutrality rules in the 2015 Open Internet Order to prevent broadband providers from blocking or slowing internet traffic to websites and applications. The FCC also classified broadband service as a Title II "telecommunications service" under the Communications Act.

First Amendment Issues

Broadband providers challenged the Open Internet Order, arguing in part that the net neutrality rules violated the First Amendment by forcing broadband providers to transmit speech with which they might disagree. In 2017, the D.C. Circuit upheld the net neutrality rules after concluding that nondiscrimination and equal access obligations do not violate the First Amendment. In a dissent from the denial of rehearing en banc, then-Judge Kavanaugh viewed the FCC's net neutrality rules as restricting broadband providers' editorial discretion over what content to carry over the internet in violation of the First Amendment.

2018 Restoring Internet Freedom Order

That First Amendment issue never reached the Supreme Court because the Trump FCC repealed the Obama-era net neutrality rules in the 2018 Restoring Internet Freedom Order. In that order the FCC also reclassified broadband internet access service as an "information service" under Title I of the Communications Act, and explicitly moved to preempt state net neutrality laws. In 2019, the D.C. Circuit largely affirmed the Restoring Internet Freedom Order, except the court vacated the FCC's preemption decisionclearing the way for a handful of states, including California, to enact their own net neutrality laws.

The Road Ahead

President Biden campaigned on a promise to restore the Obama-era net neutrality rules, and the Biden FCC appears poised to revive them. Since taking office, President Biden appointed a leading proponent of net neutrality as a White House advisor, and his Department of Justice withdrew a lawsuit challenging California's net neutrality law. The two current Democratic FCC commissioners have long championed net neutrality, and the acting chairwoman dissented from the Restoring Internet Freedom Order.

The First Amendment will loom large in any FCC proceeding to restore the net neutrality rules once the FCC is at full strength. In the time since the D.C. Circuit ruled that the First Amendment was no obstacle to the FCC's net neutrality rules, dissenting Judge Kavanaugh was elevated to the Supreme Court. As demonstrated by the Supreme Court's decision to invalidate the CFPB's structure in Seila Law LLC v. CFPB, then-Judge Kavanaugh's opinions on government actions and authorities often foreshadow the views of a majority of the Supreme Court. The Supreme Court's views about government regulation of online speech will likely play a central role in the conversation regarding the next iteration of the FCC's net neutrality rules.

More:
The Road Ahead for Net Neutrality and the First Amendment - JD Supra

D.C.'s ban on dancing at weddings provoked eyerolls when it was first announced. Now a bride-to-be is suing to stop the regulation, arguing that it is an irrational and unconstitutional restriction on her special day.

On Monday, Margaret Applebya doctoral student and D.C. residentfiled a lawsuit against D.C. Mayor Muriel Bowser and D.C. Attorney General Karl Racine in U.S. District Court, arguing that a ban on dancing at her upcoming June wedding violates her First Amendment rights.

"The First Amendment does not permit the District to irrationally discriminate against wedding dancing, while simultaneously allowing equally dangerous, though less expressive, activities to continue without remark," said Adam Schulman, a senior attorney with the Hamilton Lincoln Law Institute, which along with the Liberty Justice Center is representing Appleby.

The wedding dancing ban was first announced as part of Bowser's April 26 public health order. That order allows "multi-purpose" facilities to host weddings and other "special non-recurring events"at 25 percent capacity without the need for a special city waiver starting May 1. But it also required attendees to be seated. "Standing and dancing are not allowed," reads the order.

This restriction applies to Appleby's wedding in spite of all the other health precautions she had agreed to take, including requiring guests and vendors to be masked (unless seated and eating), making available guests' contact information for contact tracing purposes, and providing hand sanitizer throughout the venue.

Appleby and her fiance were planning to have a maskless "first dance," which they assumed was permissible given that they are members of the same household and have both been vaccinated. The explicit ban on dancing came as a shock to them, and to wedding planners throughout the city.

Both dancing and wedding rituals, Appleby's lawsuit argues, are First Amendmentprotected expression. To restrict this expression while permitting dancing in fitness classes and strip clubs is, it says, "arbitrary and underinclusive."

Their lawsuit also argues that D.C.'s restriction on expressive dancing is not "narrowly tailored" to achieve the city's public health goals, because it bans dancing even if participants are masked or vaccinated.

The lawsuit asks that D.C.'s ban on masked, socially distanced dancing be ruled unconstitutional and the city be prevented from enforcing it.

The reopening of the country's most restrictive jurisdictionsa group that definitely includes D.C.has produced a bizarre mix of restored freedoms and arbitrary restrictions. COVID-hawk governors and mayors are begrudgingly permitting more activities while also regulating them to death. Lawsuits like Appleby's are a necessary corrective to the absurd rules that are coming along with these halting reopenings.

Read more:
New Lawsuit Argues That D.C.'s Ban on Dancing at Weddings Violates the First Amendment - Reason

In a commencement address delivered at Michigan Stadium in 2010, President Barack Obama famously prescribed a cure for the enmity ailing our politics.

"If you're someone who only reads the editorial page of The New York Times, try glancing at the page of The Wall Street Journal once in a while," he exhorted. "If you're a fan of Glenn Beck or Rush Limbaugh, try reading a few columns of the Huffington Post website."

The president's sage advice went unheeded. As evidenced by voters' schizophrenically partisan opinions about President Joe Biden's legitimacy, too many of us now huddle in toxic media bubbles feedback loops confirming our political biases.

Reinstating and modernizing the time-tested Fairness Doctrine, a policy dating back to 1929 that for nearly six decades required over-the-air broadcasters to present both sides of public issues, would help burst those bubbles.

Wrapping themselves in the First Amendment, partisans and broadcasting conglomerates would fight any effort to resuscitate the Fairness Doctrine.

But freedoms are not absolute. In 1969, the Supreme Court held in Red Lion that the Fairness Doctrine withstands legal scrutiny: The First Amendment allows the government to require a broadcast licensee "to present those views and voices which are representative of his community."

Indeed, the Supreme Court ruled the Fairness Doctrine furthers the purpose of the First Amendment by creating "an uninhibited marketplace of ideas in which truth will ultimately prevail."

A Fairness Doctrine equal to the task of meeting today's challenges, including ubiquitous social networks and 24/7 cable news, would have to be carefully crafted to pass constitutional muster. But a regulatory and enforcement scheme one that balances myriad competing interests could be devised.

Ideological regulators at the Federal Communications Commission gutted the Fairness Doctrine in 1987 by selling a fiction: An increase in cable channels eliminated any need for government to shape editorial content.

The argument was not evidence-based. Fairness Doctrine opponents never established a correlation between an increase in broadcast outlets and voters' exposure to contrasting viewpoints.

History has disproven assumptions undergirding arguments hyped by libertarians who advocated the Fairness Doctrine's demise: Competition for public trust would "force" broadcasters to cover many sides of issues; the doctrine causes outlets to remain silent on controversial issues; in a bustling media marketplace, voters would listen to each other and change their minds.

These predictions were as misguided as futurists who prophesied that, like George Jetson, we'd now be commuting in flying cars.

Sean Hannity's business model doesn't give airtime to Nancy Pelosi. "Morning Joe" MSNBC producers make profits by playing to progressive partisans.

We know now broadcasters will never voluntarily walk away from the billions of dollars annually generated by wall-to-wall "politainment."

Rather than meaningfully engage each other, we rarely, if ever, emerge from partisan corners a fact reflected by our news consumption. Republicans overwhelmingly get their political and election news from Fox News, a recent Pew Charitable Trust poll found. One-fifth of Democrats and Republicans receive their news only from sources catering to like-minded audiences.

The electronic iron curtain dividing our media landscape explains why former President Donald Trump's approval ratings stayed locked in place throughout his four tumultuous years in office, why he maintains an iron grip on Republicans today, and why liberals often unfairly paint his supporters with the broadest of brushes, peremptorily dismissing them as morally irredeemable.

We don't have to live in a world in which millions of eyeballs are glued to hyper-partisan TV. Grassroots groups across the political spectrum (from the ACLU to the NRA) supported the Fairness Doctrine. It allowed them to register complaints about editorial imbalance and demand "reasonable opportunity for presentation of opposing points of view."

The Fairness Doctrine worked. It resulted in, for example, airtime being granted to respond to the political harangues of a fiery radio evangelist and the revocation of a broadcast license belonging to another radio station whose programming was "highly racist, anti-Semitic, anti-Negro and anti-Roman Catholic."

Enforcement of the Fairness Doctrine generated public trust in the media, which in recent years has plummeted to all-time lows, according to Gallup.

As importantly, the Fairness Doctrine cultivated an ethos of civic responsibility, promoted allegiance to journalistic codes of ethics, and stood as a beacon of objectivity.

Imagine the sunnier reality a wisely implemented, clearly defined Fairness Doctrine would help usher in. News outlets would be incentivized to broadcast truly "fair and balanced" news coverage. Partisan screeds more likely would be answered with counterstatements of fact.

The media, with its cacophonous echo chambers, are self-evidently in dire need of reform. It's time to revive the Fairness Doctrine and even expand it so it applies to cable TV's demagogic talking heads.

View post:
Commentary: It's time to revive Fairness Doctrine and expand it - Crain's Detroit Business

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Over the past year, employers have had to grapple with seismicsocial, cultural, and political developments impacting profoundlyhow they do business. From a worldwide pandemic severely affectingglobal communities, markets and workplaces, to the murder of GeorgeFloyd catapulting racial and social justice issues to internationalprominence, to a tumultuous presidential election and its resultingfallout, to the brutal attacks on the Asian American and PacificIslander (AAPI) community, there has been a fundamental shift inhow employers interact with the world around them and manage theirever-changing workforces.

How a company responds or fails to respond tosocial justice and political issues can impact employee morale,consumer satisfaction, community perception, a company'srelationships with its investors and its financial health. Andwhile employees have always brought their experiences andinfluences to work, increased polarization and a lightning-fastnews cycle have seen businesses not only scrambling to adapt theirpolicies and practices to respond to new realities, but alsoproactively making commitments to issues and causes important totheir leadership, their employees, and the communities theyserve.

In addition to concerns surrounding corporate responsibility andsatisfying employees, consumers, and the public at large, employersfind themselves having to respond to a wide range of on- andoff-duty employee conduct, including:

While traversing these issues, employers need to navigate apatchwork of federal, state, and local employment laws, includingbut not limited to:

Amid this backdrop, there are a number of steps employers cantake to prepare their workplaces for the effect of social andpolitical issues and respond to developments as they occur,including:

This paper reviews the relevant legal backdrop and aims to offerpractical guidance for employers as they navigate these sensitiveand pressing issues.

Numerous types of off-duty conduct could have workplaceimplications, including posting on social media or participating indemonstrations and counter demonstrations. Other forms of protestsalso could be relevant, such as taking a knee during the nationalanthem. Due to the mutual accessibility of social media accountsand that many co-workers are linked on the platforms, employeesoften may know the political and social views and activities oftheir co-workers, supervisors and subordinates, and this knowledgecan create friction that seeps into the workplace. Employees maylodge complaints with their employers about posts or other conductthey find particularly upsetting, including (subjectively orobjectively) politically, racially, or sexually offensivestatements or images. If the employer takes no action, employeesmay conclude the employer condones the off-duty conduct andvice versa. Further, social media posts that can be offensive basedon race, gender, LGBTQA+ status or other protected categories maydemonstrate discriminatory animus if the employee is ever accusedof discrimination or harassment in a lawsuit. An employer shouldknow its obligations, limitations, and options in responding tosuch complaints.

1. First Amendment

For many people, the first thing that pops to mind whenconsidering employee social media posts or public protests is theFirst Amendment of the U.S. Constitution. The First Amendmentprovides that "Congress shall make no law . . . abridging thefreedom of speech, or of the press; or the right of the peoplepeaceably to assemble." While the First Amendment secures manyessential rights for Americans, it does not apply to privateemployers. Rather, the Bill of Rights, which includes the Firstthrough the Tenth Amendments, restricts a government's abilityto interfere with individual liberties, such as freedom of speech,privacy, and religious exercise. It does not restrain privatecitizens or organizations. Thus, while private employees have aFirst Amendment right to free speech and to engage in peacefulpublic protest without government infringement, the Constitutiondoes not protect them from discipline by their privateemployer.1

In contrast, public employers risk running afoul of the FirstAmendment if they discipline employees for exercising their rightsto free speech or peaceful public protest.

1 See Carter v. Transport Workers Union of Am. Local556, 353 F. Supp. 3d 556, 576 (N.D. Tex. 2019) (grantingmotion to dismiss First Amendment-based retaliation claim againstairline company). Notably, the state of Connecticut extends theFirst Amendment protection of free speech to the employees ofprivate employers.

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The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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By Rick Santorum

Republicans have been understandably irate about content moderation decisions made by some social media platforms. Some complain that social media is not respecting their free speech rights, although the First Amendment prohibits government from forcing social media to carry speech they dont want to carry. Now, Justice Clarence Thomas has aired his own views on First Amendment protections and mused about treating social media as common carriers and public accommodations.

Some conservatives see Thomas words as a recipe to stop social media platforms from moderating user posts on their services. I share conservative concerns about political bias, but lets examine what Justice Thomas actually said and then consider what a nondiscrimination mandate would really mean for conservatives.

Despite what some commentators suggest, Justice Thomas never said that social media platforms are common carriers or public accommodations. He noted similarities between some digital platforms and common carriers or places of public accommodation and said those similarities may give policymakers leeway to regulate. But Thomas was careful not to say that social media platforms actually fall into these categories.

Thomas has good reason to be careful about that. Businesses that are common carriers must provide their services to the public without discretion about who they serve and what customers are allowed to say. However, courts have clarified that the common carrier label describes not the legal obligations of a company but how the company does business.

Unlike common carriers such as your mobile phone service provider, social media businesses have always engaged in discretion about content they allow on their platforms. It is central to a business model whose aim is to attract users and advertisers that drive revenue. One avenue of competition is what content is moderated: Some sites do not allow expletives or pornography; others moderate what they view as medical misinformation or bullying. Far from offering their services without discriminating, social media websites like Facebook spend billions of dollars and dedicate tens of thousands of workers to determining whether content violates their community standards.

Now, some Republicans are citing Thomass words to force social media to allow any speech thats permitted under the First Amendment. Sure, that would stop social media from moderating user content in a politically biased way. But it would also leave up lots of content that is positively awful, making social media far more objectionable to users and advertisers. Its a wide-open faucet for the worst user content, including bigotry, harassment, profanity, and pornographic images and videos.

While some say parental controls and safe-search might filter this filth, few users trust these filters to protect their children from the worst that Internet users come up with. The reason is math -- over 100 billion pieces of content are posted by users every single day. Offensive posts will be missed and many inoffensive images would be inadvertently flagged by the algorithms weeding through this overwhelming amount of content.

Much content Americans consider unsafe or offensive is a matter of context, and that further exacerbates the problem. Racial terms are not always racist and bullying is often near impossible to identify unless you are the one being bullied.

Common carrier regulation applied to social media will lead to a dangerous and tortuous online experience that will do real harm to millions of children and families. That is a price that most conservatives would be hard-pressed to pay to reduce political bias in content moderation.

The fact is that, despite its flaws, the Internet has empowered conservative speech more than just about any other development in the past century. Todays conservatives have forgotten that liberal media outlets used to run only an occasional column or letter from conservative elected officials or community leaders. Now, social media allows for millions of conservatives to directly share news and views with millions of Americans.

However, if the largest social media platforms are forced to allow any user post, they will become a cesspool of unfiltered filth and hatred that would make todays social media look like Sunday morning television. Most Americans will stop using the large social media sites, and advertisers will stop paying for ads.

Sure, there will still be smaller sites like Parler and Rumble that will escape common carrier regulation, but those platforms cater to the followers of Donald Trump. Without Facebook, YouTube and Twitter, Republicans wont reach large social media audiences to persuade moderate and independent voters not present on conservative social media alternatives. You know, the voters who decide elections in swing states, suburban districts, and nationally.

Conservatives should be vocal anytime social media is biased against our news and views. But we should also be careful not to throw the baby out with the bathwater. Thomass opinion certainly raises important questions, but conservatives should be careful about embracing a nondiscrimination mandate for social media. If we do, we will almost certainly end up creating an internet that is worse for everyone, especially for conservatives.

Rick Santorum is a former U.S. Senator from Pennsylvania who ran for the presidency in 2012 and 2016 in the Republican primarries.

Read more:
What Justice Thomas really said about regulating social media | Opinion - pennlive.com