How Elevation of Corporate Free Speech Rights Affects Legality of Network Neutrality

I. INTRODUCTION II. UTILIZING "ESSENTIALITY OF ACCESS" AS AN ORGANIZING PRINCIPLE III. THE COURT'S ANALYSIS IN CITIZENS UNITED V. FEDERAL ELECTION COMMISSION IV. IMPLICATIONS OF CITIZENS UNITED V. FEDERAL ELECTION COMMISSION V. FURTHER IMPLICATIONS OF CITIZENS UNITED V. FEDERAL ELECTION COMMISSION A. The Court's Radical Departure from the History of First Amendment Law 1. Overview 2. The Court's Motivation for Failing to Exercise Judicial Restraint and for Conducting an A historical Analysis 3. Each of the Court's Basic Premises is Wrong 4. Understanding Our First Amendment Tradition Based on Historical Analysis 5. The Court's Failure to Appreciate Special Concerns Raised by Corporations 6. Summary of the Court's Radical Departure from History B. Mirroring the FCC's Radical Departure from the History of Common Carriage 1. Historical Roots of Misunderstanding the Law of Common Carriage for Telecommunications 2. The Real History of the Law of Common Carriage 3. The FCC's Radical Departure from Both the Ancient History of Common Carriage and the Recent Historical Classification of the Telecommunications Component of Information Services 4. Extending or Reversing the FCC's Radical policy Trajectory Under Network Neutrality VI. THE COMBINATORIAL EFFECT OF THE COURT'S AND FCC's DECISIONS VII. NEW FCC RULES REINFORCE THE COMBINATORIAL EFFECT WITH CITIZENS UNITED I. INTRODUCTION "Essentiality of access" is a useful organizing principle for examining future communications policies in order to better enable the adoption of appropriate government interventions. It refers to the historical alignment of different access problems--that is, access to some essential service or facility--and the legal principles in the U.S. that evolved to address them. (1) It clarifies that different access problems led to the evolution of distinctive legal principles. Applying "essentiality of access" to broadband demonstrates that differing access objectives require reference to distinctive legal principles that affect different types of legal rights--including both economic rights and free speech rights under the First Amendment of the U.S. Constitution--of the access recipients and access providers. Awareness of the differing rights is necessary to address conflicts among them when simultaneously pursuing multiple access objectives, particularly when such conflicts affect constitutional rights of individuals as opposed to corporations. Technological convergence is posing conflicts among access recipients and access providers that require increasingly complex evaluation of how to balance the parties' respective legal rights. Such conflicts are shifting the tectonic plates of longstanding bodies of law, altering their interrelationships and creating new sources of friction among legal principles that had historically been viewed as independent of each other. For example, free speech concerns were rarely relevant to common carriers. As providers of only transmission facilities, telecommunications carriers generally possessed no First Amendment rights (other than as to tangential operations, such as billing practices). (2) However, mass media, as providers of information content of their choosing over their own facilities, do possess free speech rights. (3) With technological convergence and the elimination of legal entry barriers, the interrelationship of common carriage and free speech principles is becoming more complex. (4) Furthermore, the free speech rights of broadband providers have been elevated by the FCC's classification of broadband Internet access services as information services not subject to common carriage. (5) Imposing baseline obligations on broadband Internet access providers may give rise to conflicting economic and free speech rights of access recipients and broadband access providers. …