The stakes are huge for preserving free speech
on the internet.
I think the fundamental question is: who decides
how information should be transmitted and
accessed over the internet?
Should it be the government or the people?
Net neutrality proponents believe that the
first amendment interests at stake here are
those of internet users who should have a
first amendment right to access whatever content
they want on the internet.
The net neutrality activists would argue that
broadband providers have an incentive and
ability to discriminate against certain content
providers and to extract fees or tolls to
access end user customers.
The first amendment protects broadband providers
because they engage in and transmit speech.
Broadband providers perform the same function
as a printing press, a news rack, a cable
system, a broadcaster, a movie theater.
These are all transmitters of third party
content, they engage in editorial discretion
in deciding what content to transmit their
networks.
The net neutrality activist and the FCC would
argue the first amendment doesn’t apply
at all to broadband providers, they’re just
like a telephone company, both are classified
as common carriers, and common carriers have
never been viewed as engaging in first amendment
activity.
So transmitting content over the internet
is fundamentally different than transmitting
content over a telephone wire.
Telephone companies traditionally transmitted
private communications between individuals,
and historically there’s never been viewed
as a first amendment interest.
Broadband providers by contrast engage in
public communications, and when you are engaging
in mass communications or transmitting them,
you’re acting more like a broadcaster or
a cable operator or a news rack, and those
activities are protected by the first amendment.
In 1992 Congress passed the cable act which
contained a provision called the “must-carry”
statute.
The “must-carry” statute required cable
operators to transmit a certain percentage
of broadcast television stations over their
cable facilities to include them in their
cable channel lineups.
The cable operators sued and challenged that
statute all the way to the Supreme Court in
a series of decisions called the Turner decisions.
The Supreme Court held in Turner I that the
first amendment does protect cable operators,
and that the must-carry statute impinges upon
cable operators’ protected speech rights.
In Turner II the Supreme Court upheld the
must-carry statute under intermediate scrutiny.
The Turner decisions are key to the net neutrality
litigation because broadband providers perform
the same function as cable operators because
they decide whether and how to transmit content
over their facilities.
When you require a company to carry all content,
you necessarily strip it of all editorial
discretion that the First Amendment protects.
So, for example, the no-blocking rule says
that broadband providers are required to carry
all lawful traffic.
So what that means is that a broadband provider
cannot block Nazi hate speech or Islamic State
recruiting videos, even though a broadband
provider might disagree with that content.
The internet has grown and developed without
government control, without government intervention,
so the best way to ensure a multiplicity of
voices on the internet and a wide dissemination
of information is for the government not to
interfere, should let ISPs innovate and decide,
you know, how they want to offer and communicate
their services to their customers.
