The Federal Communications Commission (FCC) recently proposed an Internet nondiscrimination rule: "Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner." Among other requests, the FCC sought comment on whether the proposed nondiscrimination rule would "promote free speech, civic participation, and democratic engagement," and whether it would "impose any burdens on access providers' speech that would be cognizable for purposes of the First Amendment." The purpose of this Article is to suggest that a wide range of responses to these First Amendment questions, offered by telecommunications providers and civil society groups alike, have glossed over a fundamental question: whether the activities of broadband Internet providers are sufficiently imbued with speech or expressive conduct to warrant protection under the First Amendment in the first place. Interestingly, it is not only those who argue against governmental regulation who make this threshold mistake. Those who argue for the importance of imposing nondiscrimination and common carriage rules upon telecommunications providers also, in their eagerness to open up a conversation about the values of free speech in the age of the Internet, pay little attention to this preliminary question. Yet if this question is not resolved, any subsequent analysis of those who facilitate Internet-based telecommunications will necessarily rest on an incoherent and insufficiently considered definition of the "speech" that is at the heart of First Amendment concerns. This Article analyzes the FCC's proposed nondiscrimination rule with an eye towards whether the rule affects the speech or expressive conduct of broadband providers in a manner that is cognizable for First Amendment purposes. Discussion of the values, free speech theories, policies, investment incentives, and economic and governmental interests underlying the resolution of this claim--values emphasized by the vast majority of parties engaged in the network neutrality debate, at significant cost to the clarity of constitutional elements--are deferred pending the evaluation of this threshold question.
Ill Telecommunications: How Internet Infrastructure Providers Lose First Amendment Protection,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol17/iss1/2