New Net Neutrality Order Is a Nadir for the First Amendment & Internet Freedom

The First Amendment is premised on a simple idea: Ensuring mass media communications are free of government control is a “precondition to enlightened self-government and a necessary means to protect it.” Though this principle should be obvious, it has been lost in application to the Internet age. In its recent order adopting net neutrality rules and reclassifying Internet access as a common carrier service subject to telephone regulation (“Net Neutrality Order”), the Federal Communications Commission (FCC) concluded that Internet transmissions on networks operated by broadband Internet service providers are not entitled to protection from government control. According to the FCC, the transmission of Internet communications is not constitutionally protected speech, because it is not “inherently expressive.” Net Neutrality Order at ¶¶ 547-49. The FCC relied on this conclusion to justify its decision to regulate the Internet as if it were a plain old telephone network that transmits only common carrier communications.

The FCC’s conclusion is an unprecedented nadir for the First Amendment and Internet freedom. In a paper released last week, the Center for Boundless Innovation in Technology describes four constitutional principles that explain how the Net Neutrality Order eviscerates the freedom of the press. These four principles are summarized below.

1. The First Amendment protects both publication and dissemination of mass media communications.

The reason: The right to freedom of the press applies to the publication and distribution of mass media communications, because the government can restrict speech by “attacking all levels of the production and dissemination of ideas.” The ability of the government to control the press by controlling communications systems used for the dissemination of mass communications is why the Supreme Court long ago concluded that “[l]iberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.”

2. End users do not have a First Amendment right to access mass media communications systems or facilities.

The reason: Efforts to enforce such a right would would necessarily entangle the government and the press. Courts might have to “face the difficult, and potentially restrictive, practical task of deciding which, among any number of private parties involved in providing a program (for example, networks, station owners, program editors, and program producers), is the ‘speaker’ whose rights may not be abridged, and who is the speech-restricting ‘censor.’” The courts would be required to treat the entire chain of production and distribution for mass media communications as an arm of the government that is subject to the First Amendment’s restrictions on government action. “Freedom of the press would then be gone.”

3. If a court affirms the FCC’s conclusion, no one could invoke the First Amendment to stop the government from censoring the Internet transmissions of end users based on their viewpoint.

The reason: To invoke the protection of the courts under Article III of the Constitution, a person must assert their own legal rights and interests, not the rights or interests of someone else (a concept known as “standing”). As noted above, because end users do not have a constitutional right to access ISP facilities, they have no right to object to government censorship of ISP transmissions. End users would lack standing even if they were permitted to assert First Amendment rights on behalf of ISPs, because the FCC ruled that ISPs don’t have any First Amendment right to control their transmissions either. Under the FCC’s rationale, no one has constitutional standing to challenge government censorship of Internet transmissions on ISP networks. If the total lack of standing to challenge government censorship of the Internet seems absurd, the absurdity is not in the standing requirement: It is in the FCC’s notion that ISPs are not entitled to First Amendment protection for the transmission of mass media communications like all other members of the press.

4. There is a First Amendment distinction between mass media and common carrier communications.

The reason: A provider of plain old telephone service does not have a First Amendment right to exercise editorial discretion over a telephone call because it is a private, one-to-one communication that is not intended for public consumption (which is why telephone calls are protected by the Fourth Amendment prohibition against unwarranted search and seizure). In contrast, an ISP has a First Amendment right to exercise editorial discretion over the mass media content it disseminates because mass media content is intended for consumption by the masses. This distinction is based on the Supreme Court’s determination that “restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest.” The FCC’s decision to apply common carrier regulations to Internet transmissions ignores the constitutional distinction between common carrier and mass media communications.

For a court to uphold the FCC’s rationale while preventing government censorship of the Internet, it would have to overturn or ignore all four of these constitutional principles. Given the strong preference of lower courts for following Supreme Court precedent when deciding constitutional issues, it is very unlikely that the FCC’s net neutrality rules will withstand First Amendment scrutiny on appeal.