We have twice recently explored President Donald Trump’s transformational ten appointments to the once-wildly-insane Ninth Circuit Court of Appeals:
That court has issued some outstanding decisions recently:
- a hugely important defense of Intellectual Property (IP) and its licensing;
- a proper ordering of federalism, rightly ruling the 5G wireless WORLD Wide Web is the proper purview of the federal government; and
- a Second Amendment-defending overturning of California’s anti-Constitutional law banning basically all gun magazines.
California rigidly insists on incessantly violating the Constitution. It’s their jam, as we’ve repeatedly documented:
- Localities Shouldn’t Be Dictating (Inter-)National Policy
- Leftists Do Federalism Terribly – To Then Do Policy Terribly
- Immigration, Internet,…: The Left’s Warped, Ridiculously Fake Federalism.
The Ninth Circuit just ruled that California’s state law banning gun magazines was an illegal intrusion upon the federal government’s purview. The court also just ruled the Internet is the federal government’s purview.
Despite these rebukes, California continues to ignore the Constitution and impose indefensible restrictions on the state’s residents:
- California Senate Passes SB 822, the ‘Gold Standard’ of State Net Neutrality Laws
- What Does California’s New Data Privacy Law Mean?
With these two laws, California is yet again ignoring the obvious fact the Internet is the purview of the federal government.
Fortunately, some really good people (many of whom are friends of mine) who subjected themselves to law school are on the Net Neutrality case. Larry Spiwak is the president of the Phoenix Center and the lead counsel on the amicus brief these law school victims filed on August 19. In his email announcing the filing, Spiwak wrote,
“The focus of the amicus brief was on the doctrine of ‘field preemption.’
“In particular, the amicus brief discusses Congress’s long-standing determination that the federal government has exclusive jurisdiction over interstate communications, leaving no authority to the states to regulate such services.
“Indeed, as the brief demonstrates, throughout this history, and even in the 2015 Open Internet Order, the FCC has consistently recognized and reaffirmed that broadband Internet access service is a jurisdictionally interstate service.
“The fact that Congress may have afforded states a limited cooperative role in select, statutorily itemized areas does not mean that Congress has empowered the states with the concurrent authority to regulate the rates, terms, and conditions of any interstate communications service.
“Accordingly, the brief argues that where, as here, a communications service is interstate, states are forbidden from regulating that service directly, whether the FCC regulates the field extensively or not at all.
“That principle applies all the more clearly given that the FCC has detailed at length in its 2018 RIFO how its continued oversight, enforced by its transparency rule, will preserve Internet openness.
“Second, the amicus brief provides several examples how the California law unconstitutionally intrudes into the FCC’s exclusive jurisdiction over interstate communications and is therefore subject to field preemption.
“To begin, the brief points out that the plain terms of SB-822 unambiguously define broadband Internet access as an interstate service, meaning that the law facially seeks to regulate interstate communications.
“Similarly, the brief also points out that SB-822’s improper intrusion into the FCC’s exclusive jurisdiction over interstate communications services impedes the agency’s ability to carry out Congressional instructions set forth under both Section 230 and Section 706 of the Communications Act.”
What all of this means is pretty simple. California is a state. As such, it has zero authority to pass any laws regarding the Internet, because the latter is the exclusive purview of the federal government. The brief by Spiwak and friends directly addresses California’s lack of authority to pass its Net Neutrality law.
By the way, the premises behind the brief can also be used to toss out California’s Internet data regulation law, because the State of California has zero authority to pass any laws regulating the Internet.
Spiwak and friends’ brief was filed in the Eastern District of California, and the first appeal of any decision on it would go to the newly Trumpified Ninth Circuit.
As noted earlier, the Ninth Circuit just recently ruled the Internet is the exclusive purview of the federal government.
In addition, the Ninth Circuit very recently ruled against another of California’s multitude of anti-constitutional laws, on the grounds that it, too, violated an exclusive purview of the federal government.
Given that the Ninth Circuit is the Eastern District of California’s “parent” court, it should greatly matter to the lower court that the upper court has so recently ruled so strongly on things so pertinent to this case.
Here’s hoping the lower court does the right thing.