Net Neutrality Supporters Say Order Doesn't Violate ISPs' First Amendment Protections

Various academics weighed in to argue that the net neutrality rules cannot be construed as prohibiting free speech, at least as the First Amendment has been interpreted by the Supreme Court. The brief was signed by Larry Lessig and Yochai Benkler of Harvard, Jack Balkin of Yale and Barbara van Schewick of Stanford. “Broadband Internet access providers do not act as speakers when they transmit the speech of others,” they argue. “The providers have nothing to do with the form or content of the information that others choose to send or receive. Indeed, they expressly disclaim any endorsement of such content.”

There is “little likelihood” that anyone understands providers to be expressing a message when they provide Internet access service, the academics contend. “A broadband provider transmits an all-but-infinite variety of messages and content across the entire Internet. These messages are of course often contradictory, and no reasonable user could impute all of these various conflicting views to the provider.”

The Electronic Frontier Foundation and the ACLU conceded there is a natural tension around the rules between the rights of consumers to speak and seek speech online and of ISPs to transmit speech “without undue government interference.” The Supreme Court has addressed this tension and effectively created a road map for resolving such tensions, the groups said. “The FCC has followed that map here,” they said. “Because the Order furthers a paramount public interest by preserving freedom of speech in a dysfunctional, government-enabled industry, and does so without significantly burdening the speech of ISPs, it should be upheld.”

Web companies Automattic, Medium, Reddit, Squarespace, Twitter and Yelp argued that “open” Internet platforms are critical to free speech. “For the First Amendment to protect open and robust debate, there must be space where it can happen,” they said. An open Internet, protected by net neutrality rules, “serves the values the First Amendment enshrines by providing open spaces, and space for open platforms for citizens to participate in the political discourse that sustains our democracy,” they said.

The Future of Music Coalition, National Alliance for Media Arts and Culture and the Writers Guild of America, West also defended the order, arguing that nothing in the rules violates the free speech protections of ISPs. The groups compared transmission of data on the Internet to buying a movie from Amazon. “When a consumer orders a DVD of Apocalypse Now from Amazon, Federal Express merely ships the DVD,” the net neutrality supporters said. “Federal Express is not making a statement about the depravity of war or the human cost of the United States’ intervention in Vietnam. Federal Express merely delivers the content created by someone else.”

University of Pennsylvania law professor Christopher Yoo, who has raised concerns about the FCC rules, said the briefs ignore two important lines of legal authority in claiming that ISPs have no First Amendment interests. There is a line of cases finding that phone companies have some free speech rights, he said. “These tend to be cases where a telephone company declined to carry dial-a-porn because they said it was inconsistent with their business model and the courts upheld their right to do so,” he told us. “That established that even common carriers retain some degree of editorial discretion protected by the First Amendment.”

More importantly, there is a line of cases that stem from challenges to FCC rules prohibiting phone companies from establishing cable TV operations, Yoo said. The courts of appeals have "uniformly held" that even if a company is a common carrier "in respect to some of its services," it can still offer other services over which it exercises editorial discretion. These cases found that prohibiting telecoms from offering TV violated their First Amendment rights. The Supreme Court heard an appeal in the area, but that was mooted by the Telecom Act, which ended the prohibition, said Yoo. But the cases still stand in the courts of appeal. Yoo said he discussed the First Amendment issues in more detail in a 2010 paper.

The argument by net neutrality supporters “misses the point,” said Fred Campbell, executive director of the Center for Boundless Innovation in Technology, in an interview. “The operators of mass communications systems are protected by the press clause without regard to subtle distinctions between speech and conduct. The reason is simple. The danger of government censorship exists at any point in the chain of production and distribution of content. That is why courts have held there is a First Amendment right to distribute flyers, position magazine racks, operate a book store or publish an advertisement. It’s also why the efforts of net neutrality proponents to complicate this simple concept are unlikely to persuade the court.”