The Free Internet and the First Amendment on Trial: United States Telecom Association v. FCC

by Jonathan Keim

On Friday the D.C. Circuit will consider “net neutrality” in a case that could either free the Internet from needlessly intrusive regulations or validate the FCC’s attempts to turn it into a public utility. The case is United States Telecom Association v. FCC, and will be argued on December 4, 2015, in room 20 of the E. Barrett Prettyman Courthouse in Washington, D.C.

Much of the discussion of net neutrality has centered around the FCC’s tenuous factual, policy, and legal conclusions, and rightly so. FCC Commissioner Ajit Pai has called the FCC Order “government regulations that won’t work to solve a problem that doesn’t exist using legal authority the FCC doesn’t have[.]” But perhaps even more important than those are the First Amendment problems. Can the government force a broadband provider to carry content with which it disagrees? Can the government strip a broadband provider of editorial discretion?

Before getting to the constitutional issues, it’s important to know what net neutrality actually is. Depending on how closely you look, it’s either terribly simple or terribly complicated. On the deceptively simple side of things, net neutrality is a legal requirement that companies providing connections to the Internet cannot limit the types of content that users can send and receive while using their service.

In the real world, however, implementation of net neutrality creates a dense regulatory thicket that imposes big burdens on Internet providers. The FCC order is 400 pages long (including dissents), and classifies providers of broadband Internet services (such as cable-modem service and DSL) as “common carriers.” Classification of a company as a “common carrier” is significant because it means that the provider becomes regulated like a public utility, subject to government-established rate classifications, enhanced liability, administrative oversight, prohibitions on prioritization of communications traffic, and limits on editorial discretion over content that flows in and out of the system. As such, the net neutrality order necessarily forces providers into an FCC-designed straitjacket that requires them to transmit content with which they disagree or object to, such as Nazi hate speech, terrorist videos, pornography, and noxious political speech.

The net neutrality order actually embraces that result, asserting that the First Amendment doesn’t apply at all to broadband providers’  use of their networks. In the FCC’s view, the providers’ editorial discretion “does not rise to the level of speech protected by the First Amendment” and broadband providers are merely “conduits for the speech of others,” not “speakers themselves.”

But that’s quite a claim, since it contradicts the FCC’s own finding that broadband providers would disadvantage some types of content in the absence of the regulation. (Let me know if you figure out how prioritizing some speech over other speech doesn’t count as editorial discretion.) And with that problem in mind, the FCC’s argument runs headlong into the Supreme Court’s conclusion twenty years ago that cable providers – who surely transmit others’ speech, but also exercise editorial control over programming by allocating scarce network resources – are “entitled to the protection of the speech and press provisions of the First Amendment.”

The FCC rejected the First Amendment argument, but the D.C. Circuit and the Supreme Court may well be a different story. For one thing, there’s no reason to think that the Supreme Court would accept the FCC’s minimalist view of the First Amendment. Another reason is that the FCC simply can’t meet its burden of showing justification for such a massive intrusion on editorial discretion. Previous FCC regulations of this sort had to be justified on the grounds that providers are “gatekeepers,” i.e., they hold monopoly power over the services and might abuse it to block competition. So, the argument went in 1994, the need to guarantee free flow of information overrode First Amendment concerns about free speech and editorial discretion.

But one can hardly say the same thing about the state of broadband in 2015. There is no longer any shortage of ways to access content on the Internet. Numerous broadband technologies compete for customers, from wireless and fiber optic technologies to older methods like cable modems and DSL. Numerous companies fiercely compete for customers for the same technology, and the technologies all compete with each other. Why would the FCC think that a provider could exercise market power without driving customers to its competitors?

The composition of Friday’s panel is interesting, featuring David Tatel, a Carter appointee, Stephen Williams, a Reagan appointee, and Sri Srinivasan, an Obama appointee. I’m hoping that they can see through some of the arbitrary and contradictory conclusions set out in the FCC’s net neutrality order. We’ll see.