The First Amendment reflects the conviction that the widest possible dissemination of information from diverse and antagonistic sources is essential to public welfare. Like the printing press, the Internet has dramatically transformed the marketplace of ideas by providing unprecedented opportunities for individuals to communicate. Though its growth continues to be phenomenal, broadband service providers— acting as Internet gatekeepers—have developed the ability to discriminate against specific content and applications. First, these gatekeepers intercept and inspect data transferred over public networks, then selectively block or slow it. This practice has the potential to stifle the Internet’s value as a speech platform by compromising its neutral and open architecture, which has traditionally limited the ability of both public and private entities to engage in censorship. In 2010, the Federal Communications Commission (“FCC”) embraced the concept of network neutrality through its Open Internet Order, which imposes anti-discrimination, anti-blocking, and transparency requirements on broadband providers. Opponents of mandated network neutrality argue, however, that in its attempt to prevent broadband providers from engaging in discrimination on the basis of source or content, the FCC interfered with the right of providers to exercise editorial control. Indeed, in 2014, Verizon argued exactly that in Verizon v. FCC. Having determined that the FCC’s rules, in their then-current form, contravened provisions of the 1996 Telecommunications Act, the D.C. Circuit declined to address Verizon’s First Amendment contentions. In light of the Verizon ruling, the FCC has produced new network neutrality rules, and it is a near certainty that the FCC’s future efforts will face First Amendment challenge. This Article begins by providing background on network neutrality and the architecture of the Internet. It then examines the constitutionality of the FCC’s rules, focusing on case law that has developed in the context of communications regulation. The Article argues that the rules are content neutral and that they serve a governmental interest of the highest order: the maintenance of the free and open Internet that is crucial to the promotion of a vibrant marketplace of ideas. Because that interest outweighs incidental restrictions to the speech interests of broadband providers, the Article concludes that the FCC’s attempts to mandate Internet openness will survive future First Amendment challenges.
Andrew Patrick & Eric Scharphorn,
Network Neutrality and the First Amendment,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol22/iss1/3