For the most part, objections to the FCC’s new “network neutrality rules” – codified in December to preserve a “free and open” Internet despite a lack of evidence that anything less was the ongoing condition already – have centered on the probable negative impact on investment in the broadband space, and on the ability of Internet service providers (ISPs) to manage their networks efficiently.
And why not? After all, this is a time when even President Obama is recommending regulatory reform, and the net neutrality regulations impose substantial new reporting obligations, even as they fail to provide a clear understanding of what network management practices are acceptable.
Important as these concerns are, however, there is another problem with these rules, and that is the degree to which they conflict with the First Amendment. Though this argument has been propounded by such notables as Laurence Tribe and FCC Commissioner Robert McDowell (who dissented from the FCC’s Order), it has gotten very little coverage in news or opinion stories.
But that may change if a lawsuit filed in federal court last month by Verizon survives the FCC’s motion to dismiss. Indeed, if this case were to reach the Supreme Court, it might provide yet another example, a la Citizens United, of laws or regulations undone because of their constitutional infirmities.
So what are the First Amendment problems with the net neutrality regulations? Broadly speaking, there are two: The regulations fail to recognize that broadband ISPs are speakers for First Amendment purposes; and they interject the government into private decisions about speech.
Commissioner McDowell elaborated on this first point in some detail in delivering his dissenting opinion. “I question,” he said, “the Order’s breezy assertion that broadband ISPs perform no editorial function worthy of constitutional recognition.”
It is undisputed that broadband ISPs merit First Amendment protection when using their own platforms to provide multichannel video programming services and similar offerings. The Order acknowledges as much but simply asserts that the new regulations will leave broadband ISPs sufficient room to speak in this fashion – unless, of course, hints elsewhere in the document concerning capacity usage come to pass. So while the Order concedes, as it must, that network management regulation could well be subject to heightened First Amendment review, it disregards the most significant hurdle posed by even the intermediate scrutiny standard. The Order devotes all its sparse discussion to the first prong of the intermediate scrutiny test, the “substantial” government interest, while wholly failing to address the second and typically most difficult prong for the government to satisfy: demonstrating that the regulatory means chosen does not “burden substantially more speech than is necessary.”
In comments submitted to the FCC by Time Warner Cable, Harvard constitutional scholar Laurence Tribe, who served as a judicial adviser to President Obama’s election campaign, made a number of kindred observations about net neutrality and the Constitution. Two paragraphs, in particular, are of special note:
Net neutrality proposals rest on the mistaken premise that the Constitution gives the government a role in ensuring that the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers. In fact, a central purpose of the First Amendment is to prevent the government from making just such choices about private speech, including decisions about what amount of any given kind of speech is optimal. Inconsistent with that purpose is any notion that government might properly limit private decisions, such as those by BSPs (broadband service providers) regarding the control of their networks, in order to widen the access of some to the avenues of speech or to swell the aggregate amount of speech beyond whatever would result from the decisions of private speakers enjoying “absolute freedom from First Amendment constraints.”...
Many net neutrality proponents argue that BSPs are not actually engaging in speech that implicates the First Amendment. But they are incorrect. The Constitution applies equally even outside traditional print or electronic media, so that, for example, the government cannot require an individual to open his doors and turn his home into a forum for protesters. Further, like a newspaper, a BSP has a limited capacity to distribute information and accordingly enjoys the right to decide how to apportion that space. And as noted, BSPs make decisions about the delivery of particular content as they continue to innovate in the products, services, and business models they employ.
Quite apart from net neutrality’s First Amendment problems in the United States, there is an international aspect that is also troubling to those who recognize the importance of free speech around the world.
In remarks delivered in Washington last year to The Media Institute, the State Department’s Coordinator for International Communications and Information Policy, Ambassador Philip Verveer, said the following: “The net neutrality proceeding is one that could be employed by regimes that don’t agree with our perspectives of essentially avoiding regulation of the Internet ... it could be employed as a pretext or as an excuse for undertaking public policy activity that we would disagree with pretty profoundly....”
For his candor, Ambassador Verveer received criticism from net neutrality proponents inside and outside the administration, but his point survives. It's really not such a difficult concept to apprehend: When governments acquire regulatory authority over media and communications they are that much closer to being able to control the content and distribution of those media and communications, however benign the rationale for their regulatory authority may seem.
As mentioned at the outset, the First Amendment aspects of net neutrality have gone largely unreported, and there is little doubt that most of the briefs filed in support of Verizon’s case will accentuate other problems with the regulations. But for those of us who follow free speech issues closely, the constitutional baggage is a thing of great interest and possibly great consequence.
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.
