Network Neutrality and Broadband Service Providers' First Amendment Right to Free Speech
Shell, Meredith, Federal Communications Law Journal
TABLE OF CONTENTS I. INTRODUCTION II. NETWORK NEUTRALITY AND THE DEBATE OVER BSPS' FIRST AMENDMENT RIGHTS A. The Debate Over the Order B. First Amendment Protections for Speech Transmitters 1. Free Speech Rights for Newspaper Editors, Radio Broadcasters, and Cable Television Operators 2. The First Amendment Is Not Absolute: Justifying Free Speech Restrictions III. ANTI-BLOCKING AND ANTI-DISCRIMINATION RULES WOULD SURVIVE FIRST AMENDMENT SCRUTINY A. BSPs' Transmission of Internet Content Does Not Constitute Protected Speech 1. The Physical Qualities of the Internet Eliminate the Need for an "Editor" 2. BSPs Do Not Engage in Active Editorial Discretion, but Instead Merely Act as Conduits of Speech Because Their Transmission of Third-Party Original Content Does Not Involve Any Identifiable Message B. Even if BSPs' Transmissions Are Speech, Network Neutrality Rules Do Not Violate the First Amendment Because They Serve a Substantial Government Interest 1. The FCC Has the Statutory Authority to Impose No Blocking and Nondiscrimination Rules on BSPs 2. Anti-Blocking and Anti-Discrimination Rules Further Important Government Interests 3. The Government's Interests in Preserving an Open Internet Are Unrelated to the Suppression of Free Speech 4. The Incidental Restriction on Alleged First Amendment Freedoms Is No Greater Than Is Essential to the Furtherance of That Interest IV. MOVING FORWARD: CLARIFYING FIRST AMENDMENT RIGHTS IN THE INTERNET AGE V. CONCLUSION
The emergence and continued pervasiveness of the Internet has sparked a controversy over whether there is a substantial social interest in maintaining open access to that Internet through network neutrality. (1) Put simply, network neutrality is "the principle that broadband networks should not discriminate between favored and disfavored Internet content, services, and applications." (2) The archetypical example of a non-neutral network is when broadband service providers ("BSPs"), such as Verizon or Comcast, treat one kind of Internet traffic differently from another. (3) For example, if Netflix--a website providing on-demand streaming of movies and television shows--forms a partnership with Comcast, Comcast may treat this traffic more favorably, allowing for faster streaming and ultimately a more enjoyable experience for Internet users. Further, if Netflix does not form a partnership with Verizon, Verizon might treat Netflix traffic less favorably, slowing the speed at which these videos stream. This slowing could lead Verizon users who wish to stream on-demand videos but hope to avoid the slow streaming rate on Netflix to select a competing video service--one that has partnered with Verizon and therefore offers faster streaming speeds.
To address concerns about such network discrimination, in December 2010, the Federal Communications Commission ("FCC") issued the Open Internet Order ("Order"). (4) It contains three rules--a "Transparency" Rule, a "No Blocking" Rule, and a "No Unreasonable Discrimination" Rule--that act together to generally prohibit BSPs from prioritizing some Internet content over other content. (5) In January 2014, the U.S. Court of Appeals for the District of Columbia Circuit vacated the No Blocking and No Unreasonable Discrimination Rules in Verizon v. Federal Communications Commission, holding that these rules exceeded the FCC's authority under the Communications Act to regulate providers of "information services." (6) Although the court agreed with the FCC that section 706 of the Act (7) furnishes the agency with considerable authority to regulate BSPs, (8) the court nevertheless held that the FCC's rules impermissibly treated BSPs as common carriers. …