Net Neutrality Vote a Victory for Free Speech

WASHINGTON, D.C. — Today, the Supreme Court will hear arguments in First Choice Women’s Resource Centers, Inc. v. Platkin about when organizations can ask federal courts to review state investigatory subpoenas that they claim chill their First Amendment rights. In September, the American Civil Liberties Union and the ACLU of New Jersey joined an amicus brief authored by the Foundation for Individual Rights & Expression (FIRE) in support of the right to seek federal relief. “Even before they’re enforced, law enforcement subpoenas seeking sensitive donor information threaten to scare away supporters essential to any nonprofit’s work,” said Brian Hauss, deputy project director of the ACLU’s Speech, Privacy, and Technology Project. “At a time when government officials throughout the country abuse regulatory powers to punish their ideological opponents, federal courts must remain a venue in which people can vindicate their First Amendment rights.” In 2023, New Jersey Attorney General Platkin issued subpoenas under the state’s consumer protections laws to First Choice Women's Resource Centers, a nonprofit that runs anti-abortion crisis pregnancy centers, seeking wide-ranging information including the identity of donors. First Choice challenged the subpoenas in federal court, arguing that the information sought chilled its First Amendments rights to speech and association. The Third Circuit dismissed First Choice’s claims, saying it could not assert its First Amendment rights in federal court until the state enforced the subpoena in state court. “While the ACLU of New Jersey advocates for different policy outcomes than the plaintiff in this case, we are on the same page that investigatory subpoenas seeking sensitive information put all advocacy at risk,” said Jeanne LoCicero, legal director of the ACLU of New Jersey. “Federal court should remain open to anyone who believes their First Amendment rights are being violated, regardless of viewpoint.” The FIRE/ACLU brief argues that law enforcement subpoenas seeking sensitive donor information threaten to chill protected speech and association, even before they are enforced. To ensure that these investigatory tools are not abused to retaliate against the ideological opponents of those in office, federal courts must promptly review claims that law enforcement subpoenas violate the First Amendment. The amicus brief was filed in August. It can be read here. This matter is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.

WASHINGTON, D.C. — Today, the Supreme Court will hear oral arguments in Cox v. Sony, a landmark copyright case. An amicus brief by the American Civil Liberties Union, the ACLU of Virginia, and the Center for Democracy and Technology, working with leading copyright scholars and attorneys, urges the court to limit copyright penalties imposed on internet service providers (ISPs) for alleged user behavior. The Court is reviewing a decision by the Fourth Circuit that would force ISPs to shut off Internet access for any IP address based on a copyright holder’s mere accusation that it has been used to infringe a copyright. In practice, this could shut off Internet access for entire families, businesses, hotels, airports, and libraries because of the alleged actions of one user. This kind of collective punishment has troubling implications for online speech. “This case is bigger than one company paying penalties to another,” said Evelyn Danforth-Scott, staff attorney with the American Civil Liberties Union. “This is about incentivizing service providers to shut off internet access first and ask questions later. In our increasingly connected and digital world, where we use the Internet to speak, listen, research, and create, that threatens all of our First Amendment rights.” “First Amendment interests are especially at risk when secondary liability is applied to an Internet service provider like Cox because of how they operate,” said Jennifer Granick, surveillance and cybersecurity counsel with the ACLU’s Speech, Privacy, and Technology Project. “Since the Internet service provider can’t remove individual pieces of copyright infringing material moving through their system, they're forced to terminate entire accounts, blocking anyone using that IP address from using the Internet. The Court should limit the scope of contributory copyright liability to make sure Americans aren’t unjustifiably blocked from getting online." The brief urges the Court to adopt the same contributory liability rules that apply in other contexts to preserve the free speech rights of distributors of speech. In Smith v. California, for example, the Court determined that imposing criminal liability on a bookstore for selling obscene books would incentivize them to stringently self-censor, stripping the shelves bare to avoid any potential fines or punishment. A similar theory is at play in Cox Communications v. Sony Music, where ISPs may be incentivized to bar users from the Internet based merely on an unproved accusation of illegal activity. Several record companies and music publishers, including Sony Music Entertainment, sued Cox Communications, an Internet service provider, in 2018 for not kicking users off their services for allegedly using music pirating services like BitTorrent. A jury awarded the plaintiffs a billion dollars in damages, and in 2024, the Fourth Circuit Court of Appeals affirmed in part: It held that Cox Communications was liable for contributory copyright infringement because it hadn’t taken enough steps to disconnect users who were allegedly downloading pirated works. Cox is asking the Supreme Court to reverse that decision. Oral arguments in Cox v. Sony take place today. The brief, filed in September by the American Civil Liberties Union, the ACLU of Virginia, and the Center for Democracy and Technology, represented by co-counsel Lex Lumina LLP, Professors Rebecca Tushnet, Mark Lemley, and Chris Springman, can be viewed here. This case is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.

We’re filing a FOIA to find out how deep the problem goes