Broadband Internet network neutrality regulation prohibits high-speed network operators from blocking particular Internet content or applications. The goal of this regulation is to assure that Internet users – not network owners – choose which online information survives in the marketplace of ideas. Effectively, network neutrality rules assure users can access the information of their choosing without restriction.
This research positions network neutrality in the context of layered network regulation. It is argued that network neutrality constitutes regulation at the Internet’s logical layer, or the layer where the information flows from publisher to user. The research draws upon the work of Jerome Barron’s media access proposal, repositioning the idea of access to coincide with the needs of users in the Internet age – access to information rather than access to the medium. The First Amendment fungibility of network neutrality in this context is then explored.
The research concludes that the First Amendment provides a constitutional basis for network neutrality rules. Specifically, a series of precedents beginning in the 1940s provides support for the government to create and enforce regulations that limit the rights of network owners to block the flow of information when certain conditions are met. Namely, regulations may not constitute censorship, there must be a strong government interest in assuring access to the information, and regulation must occur at the network’s logical layer. Network neutrality rules fulfill these criteria and should stand up to First Amendment scrutiny.