Net neutrality has gotten plenty of press as we debate its policy (is it good or bad). But is there a lurking First Amendment issue? Perhaps, and it might not be what you think.
First a quick primer. Net neutrality is the requirement that internet-service providers (ISPs) like Comcast, Time Warner, CenturyLink, etc. treat all data on the internet equally. It means that your cable company can’t charge a website (like Netflix) more money for faster access to consumers than a different website (say, WordPress). Proponents say net neutrality keeps the internet free, open, and fair. Opponents say it deters investment in broadband infrastructure and isn’t really needed to keep the internet “neutral.” The FCC in 2015 made net neutrality a reality. Now the FCC might roll back their net-neutrality rule.
Okay, so what’s the First Amendment issue? (It is not that an ‘un-neutral’ net limits free speech–that’s a policy argument because it’s not the government throttling access to websites; it’s private parties.) The issue goes back to two Supreme Court cases from the 1990s involving Turner Broadcasting Company (TBS). Those cases involved an FCC rule that required cable TV companies to carry broadcast local channels (e.g., the local station of CBS, NBC, or FOX that you could pick up with the old-school rabbit-ears antenna), and include those channels in any cable-TV package offered within the broadcast range of those channels. This was called the “must-carry” rule.
The cable companies argued that the must-carry rule violated their First Amendment right to exercise “editorial discretion” over the content of their TV-package offerings (similar to a newspaper editor), effectively amounting to forced speech. The Supreme Court ruled in favor of the FCC back then, holding that the FCC’s rule passed constitutional muster, but the Court still said that the rule raised a First Amendment issue: that is, that TBS had a First Amendment right. In the end, the Court said that TBS’s First Amendment rights weren’t violated.
Fast forward to today. ISPs are making the same argument: net neutrality restricts ISPs’ First Amendment right to exercise “editorial discretion” over the content of their internet-package offerings. The fight recently played out in the ISPs’ lawsuit against the FCC over the net-neutrality rule. (The D.C. Circuit ultimately ruled in favor of the FCC.) Although the court did not technically rule on the First Amendment issue, we got two different opinions on it. One judge did not see a distinction between the net-neutrality rule and the must-carry rule from the TBS cases in the 1990s. He thinks ISPs have a First Amendment right. Another judge says there is no First Amendment issue (i.e., that ISPs have no First Amendment rights here) because the net-neutrality rule applies only to ISPs “that hold themselves out as neutral, indiscriminate conduits to internet content.” In his view, that makes the net-neutrality rule basically a “don’t lie” rule. The first judge responds that First Amendment rights are not subject to a “use it or lose it” approach.
So there you have it. At least one federal judge is on record saying that net neutrality raises First Amendment issues. The Supreme Court has not weighed in on net neutrality, but we wouldn’t be surprised if they did in the not-too-distant future.
Case: U.S. Telecom Ass’n v. FCC, No. 15-1063 (D.C. Cir. May 1, 2017) (order denying rehearing) (opinion here)