The Sneaky Fight to Give Cable Lines Free Speech Rights

It seems counterintuitive that a phone line could be a "speaker." But the cable industry very much wants to ensure that the act of transmitting speech from Point A to Point B is protected by the First Amendment, so that making a cable connection carry any speech it isn’t interested in amounts to unconstitutional “forced speech.” The addition of Justice Brett Kavanaugh to the Supreme Court roster gives the industry a significant boost. In a 2017 DC Circuit dissenting opinion, Justice Kavanaugh made it clear that he supports giving internet access providers "speaker" privileges, saying that "the First Amendment bars the Government from restricting the editorial discretion of Internet service providers." Right now, the cable industry is unquestionably operating a service that customers view as a utility. But it is subject to vanishingly few obligations. And now it wants to ensure that it will be wrapped in the Constitution if the government ever tries to change this situation. This should be intolerable.

[Susan Crawford is a professor at Harvard Law School]