Today is my last day as a Climenko Fellow at Harvard Law School. Tomorrow I leave Boston to become a professor at Ohio Northern Law School. As I tell my students, transitions are a good time to reflect on how far we have come.
President Obama’s tenure has seen an alarming uptick in incidents that compromise the delicate relationship between politics and law. Politicians and citizens of all political stripes have contributed to this uptick. Most recently, the efforts to recall Judge Aaron Persky based on his sentencing decision in a highly publicized sexual assault case demonstrate how identity politics and emotional outrage can dramatically undermine our respect for an independent judiciary.
Yesterday’s 108-page majority opinion upholding the Federal Communications Commission’s net neutrality rules devotes less than 10 pages to the First Amendment challenge. Judges Tatel and Srinivasan held, in validating the FCC’s net neutrality rules, that prohibiting Internet Service Providers from prioritizing certain Internet traffic does not violate the First Amendment. This limited First Amendment analysis is fitting. Companies like Time Warner do not make editorial judgments when providing Internet services and thus are not First Amendment speakers. However, the D.C. Circuit’s opinion has implications for other First Amendment interests – like Google’s right to control its algorithm or an agency’s power to revoke a communications provider’s free speech rights. The D.C. Circuit should have written its opinion more carefully so as to better protect and clarify First Amendment interests for future cases.