Supreme Court Hears Two Cases Critical For Future Of Online Free Speech

March 29, 2005 12:00 am

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Future of Free Internet At Stake In Both Grokster and Brand X Cases Argued Today, ACLU Says

NEW YORK — Two cases being heard by the Supreme Court today will determine whether the Internet remains the open forum for free speech that it has always been, according to the American Civil Liberties Union, which filed friend-of-the-court briefs in each of them.

One is a case having to do with the legality of file-sharing software (MGM. v. Grokster, 04-480), and the other involves whether the government will regulate monopolistic providers of Internet access (FCC v. Brand X, 04-281).

“People have grown complacent about freedom on the Internet, but bad policies can easily limit that freedom and stifle growth,” said Barry Steinhardt, Director of the ACLU’s Technology and Liberty Project. “We can’t assume that the Internet is inevitably, permanently open to the free exchange of speech, ideas and information. But we are hopeful that the Supreme Court won’t let free speech be curtailed in today’s cases.”

In MGM v. Grokster, the Court will decide whether Grokster and other makers of “peer-to-peer” software, which allows individuals to share computer files directly with each other, can be held liable for illegal uses of that software such as the sharing of copyrighted music files.

“File sharing is one of the most innovative uses of the Internet to emerge since the advent of the Internet,” said ACLU attorney Aden Fine, an author of the ACLU’s amicus brief in the case. “This is a technology that enables a vast amount of legitimate, non-infringing speech. Technologies should not be shut down just because some people use them illegally — especially a technology such as file sharing, which has potentials for expanding free speech that Americans have only begun to explore.”

In the second case being heard by the High Court today, FCC v. Brand X (which has been consolidated with a similar case, National Cable and Telecommunications Association v. Brand X), the underlying issue is whether providers of cable broadband Internet services should be forced to provide access to Internet Service Providers other than their own.

“The cable monopolies own the wires that people use to get online,” Steinhardt said. “They must not be allowed to parlay that ownership into control over subscribers’ e-mail, Web surfing, Internet telephone services, or other applications and services. These are companies that have both the technological means and the economic incentive to interfere with the free and open Internet by depriving consumers of access to competing services. If the government does not stop them, the result should surprise no one.”

Steinhardt added, “At root this case is about free speech, because if the forums where speech take place are not themselves free — and the Internet may be the greatest forum of them all — then the First Amendment becomes nothing more than a dry, meaningless abstraction.”

In 2002, the ACLU commissioned an engineering firm, Columbia Telecommunications Corp., to examine the technology behind broadband Internet access. CTC’s report makes clear that cable broadband providers can and indeed already are interfering with the free, neutral “end to end” Internet, the ACLU said. The report and a recent supplement is available at

The ACLU’s amicus briefs in both cases are online at

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