The First Amendment Issue of Our Time

Here we go, once more unto the breach, to face yet another battle in the near decade-long war over net neutrality. Some of the combatants have changed, and their positions have shifted slightly, but today we find essentially the same interests represented and the same arguments advanced. On one side, the major cable, Digital Subscriber Line (DSL), and wireless broadband providers continue to argue against increasing the Federal Communication Commission's (FCC) authority over how these providers manage the flow of information through their pipes. On the other side, we have content providers, Internet users, and - this time - the FCC, contending that the government has the power to protect the free flow of information on the Internet. In 2002, the FCC under President George W. Bush and then Chairman Kevin Martin embarked on a course of extremely light (which turned out to be nonexistent) regulatory oversight of broadband providers. The Obama administration, with Chairman Julius Genachowski now at the helm, is attempting to reverse this course and impose a meaningful net neutrality mandate on broadband providers. In this iteration, not only has the FCC switched sides, but, to keep things interesting, Google and Verizon - typically on opposite sides of the net neutrality debate--have joined together to find common ground and have proposed a compromise position. Many of the issues are nuanced, yet the general contours of the arguments are relatively straightforward. On the one hand, the broadband providers’ argument continues to proceed something like this: Trust the market. Any imperfections in the market or barriers to free and open Internet communications will be cured by the market itself. The market is robust and has thrived thus far without regulation, and the Internet will only be hampered by regulation. There is simply no need for net neutrality regulation because there is hardly any evidence that broadband providers have discriminated against content or applications (and Comcast had good reasons for blocking BitTorrent traffic). Furthermore, regulation of broadband providers will violate those providers’ First Amendment rights as speakers to select, edit, block, or favor the content of their choosing. In response, the proponents of net neutrality regulation such as myself argue that broadband providers serve as increasingly important conduits for our communications. This is especially true with respect to those providers’ ability to manage the “transmission component” of broadband communications--the part the FCC now seeks to regulate. Conduits for communications--which we call “common carriers,” such as telephone companies, the postal service, and telegraph companies of old--have long been under a legal obligation not to discriminate against the communications they are charged with carrying. The telephone company cannot refuse to connect your call because your conversation is racy, nor can the postal service refuse to deliver your mail because it contains unpopular political propaganda. This basic duty not to discriminate is imposed regardless of the existence of monopoly control by communications conduits. We have learned over the past century not to entrust our free speech interests to “the market.” Rather, we regulate these conduits for communication because doing so is necessary to ensure the free flow of information. The relevant free speech interests at issue here are not those of the broadband provider (which are virtually nonexistent) but those of members of the public whose communications must be facilitated free of discrimination or censorship in order for democratic self-government to fun. Notably, both sides of the net neutrality debate invoke free speech in support of their cause. As a result, the net neutrality battle has turned into what has been called “the First Amendment issue of our time.” In this article, I explore some of the latest contours of the net neutrality debate, with an eye toward evaluating the First Amendment and free speech implications of both sides’ arguments. Part I examines the specifics of the approaches to net neutrality regulation recently proposed by the FCC and the Verizon-Google team. In Part II, I critique broadband providers’ arguments that net neutrality regulation would violate their First Amendment rights. Part III argues that proposed transparency-only requirements for wireless broadband providers are insufficient to protect our full range of free speech interests. And Part IV proposes a framework for regulating “specialized” online services that is informed by the First Amendment’s public forum doctrine.