Update, May 16, 2018: The Senate on Wednesday approved a Congressional Review Act resolution to reinstate net neutrality. The measure now moves to the House.
Senate Democrats today reached an important milestone in the path to saving net neutrality after the Federal Communications Commission announced last month it would roll back protections from discrimination by internet service providers.
A variety of proposals have been floated at the local and federal level to chip away at the FCC’s giveaway to the big telecommunications companies. But there are really only three ways to fully roll back the rollback. A federal court could rule in favor of the advocacy groups, states, and tech companies who will the FCC action. However, complex legal challenges can take years. The FCC itself could reverse course and undo its decision. But given that the agency just voted along party lines to do away with net neutrality, it’s very unlikely the FCC would do an about-face until the White House changes hands.
Only one of the rollback options has a chance of making a difference in the near term. A law called the Congressional Review Act allows Congress to follow special expedited procedures to overturn agency actions with which it disagrees. Congress has 60 legislative days to act once the agency action has been formally posted and presented to the House and Senate. (Given the convoluted way that Congress counts a legislative day, our best guess is that the clock would run out in early to mid-June or so.) While the countdown hasn’t started yet, Democrats announced today that they have succeeded in getting the minimum 30 names necessary to force a vote.
Why 30 votes?
The Senate is a famously slow and deliberative chamber, where oftentimes one senator can block a bill from moving — and even if it moves, the bill needs 60 votes to overcome a filibuster. The Congressional Review Act has special provisions that negate some of these procedural quirks. As with any piece of legislation, a joint CRA “resolution of disapproval,” filed in both chambers, is referred to the committee that has the relevant jurisdiction. With most pieces of legislation, a committee chairperson who doesn’t like a bill simply refuses to let his or her committee act on the measure. But under the Congressional Review Act, 20 calendar days after the measure is given to the committee, the measure moves to the floor once 30 senators have expressed support for it in writing. Since 37 Democratic senators have already signed on to this proposed resolution of disapproval, they’ll now be able to force a vote after the committee receives the resolution.
Can’t Mitch McConnell just refuse to let the resolution come up for a vote?
The Senate majority leader controls the calendar and the agenda, together with the senators from his party. But under the CRA, any senator can bring up the joint CRA resolution for a vote at any time once the 30 senators have removed the matter from committee. Debate in the Senate is limited to 10 hours, after which the vote takes place. Most importantly, the resolution only requires a majority of votes to pass in the Senate — meaning, if the Democrats are united, they only need two Republicans to join them.
What about the House?
In short, there are no special rules in the House to guarantee a vote on the CRA resolution. But under the regular rules of the House, there is a mechanism allowing the discharge of a bill from committee along similar procedural lines as the CRA allows in the Senate. Unfortunately, a discharge petition in the House requires a full majority of the chamber — a much taller task than what the special minority rights provision enables in the Senate.
Does the president need to sign a CRA joint resolution of disapproval?
Yes. If Trump were to veto the resolution, Congress could overturn that action with a two-thirds vote in each chamber, as with any other bill. Given the who favor strong net neutrality standards, it isn’t inconceivable that members of Congress would listen to their constituents instead of the arbitrary and unfounded arguments of the FCC and the big internet service providers.
Once the FCC rule is delivered to Congress, the Senate will likely move within a couple of months to vote, and net neutrality supporters in the House will scramble to organize a majority. If members of Congress are paying any attention to their constituents, they should buck President Trump and the FCC on behalf of an internet that is equally accessible to all.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.