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The Next Fight for Net Neutrality

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The congressional battle over net neutrality may be over, and the Federal Communications Commission has voted to regulate the Internet as a public utility. But that just means the fight over net neutrality will likely move back to the courts. And this time, expect the First Amendment to be front and center.

Thus far, legal battles surrounding net neutrality have focused on the FCC’s authority to regulate. Now that the political process has established a statutory responsibility, opponents of net neutrality -- primarily Internet service providers -- need a constitutional argument to ask the courts to reverse the result.

QuickTake Net Neutrality

Their best bet is to claim that Internet traffic is a form of speech, and the ISPs that carry those messages are speakers. According to this theory, the best metaphor to describe ISPs isn’t utilities delivering electricity or gas to all consumers on the same footing. Instead, the ISPs would ask the courts to think of them as news organizations, conveying the stories and advertising that they choose.

If ISPs could persuade the courts to think of them as modern news disseminators, rather than as purveyors of a content-neutral commodity, that would bring to bear the full body of free-speech jurisprudence that the Supreme Court has developed over the last century. In particular, the ISPs would rely on the doctrine of “compelled speech.” The Supreme Court has held that your right to speak includes a right not to be forced to say something you don’t want to say. The ISPs would argue that prioritizing the carrying of information is a form of speech preference, one that net-neutrality regulations deny.

Is this argument at all plausible? And can it overcome the counterargument made by supporters of net neutrality, such as Tim Wu, who invented the phrase, that the First Amendment properly understood should actually encourage net neutrality?

The threshold question is whether ISPs are speakers as opposed to commodity brokers. It would be nice to say that the ISPs, faceless corporations in search of profit, are nothing but commodity brokers. But the truth is much more complicated. ISPs may lay down physical cable, which makes them look like electricity companies that lay down wire. But the product that travels over the cable is information, and information is what the First Amendment is supposed to protect.

This in turn implicates a deeper problem for the future of the First Amendment: Should all information businesses get the constitutional protection historically afforded to the press?

Google’s search function, for example, facilitates the flow of information, and in effect aggregates news. That sounds like it deserves First Amendment protection. Are the ISPs really so different from Google? They, too, facilitate the flow of information. And they want to make judgments about how that information should be allocated, just as Google does when it prioritizes certain results because someone has paid a fee.

Of course, if the ISPs are in the information business, it doesn’t immediately follow that net neutrality is compelled speech. Back in 1969, the Supreme Court decided a case called Red Lion Broadcasting Co. v. FCC. In the decision, the court upheld the FCC’s “fairness doctrine,” which required broadcast networks to provide equal time for both sides of controversial political and social issues.

The court’s rationale was that bandwidth was inherently limited. The government was giving out that bandwidth through its broadcast licenses. In so doing, the government was justified in imposing certain speech on broadcasters in the service of “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences.”

With the emergence of cable television and then the Internet, the Red Lion doctrine faded almost into obsolescence. The fairness doctrine looked like a relic of the days when there were three national television networks that dominated news provision. In the era when anyone could say anything on the Internet, bandwidth no longer seemed to be limited.

The net-neutrality debate provides an occasion to revive the Red Lion decision. Does the public have a right to equal access to information on the Internet? If it does, that right must come from a combination of limited access and the right to know.

Before ISPs started to talk about charging differential rates, we naively believed that limited access was a thing of the past. Not so. Differential rates effectively limit access over ISPs. In this sense, ISPs really are like public utilities: They have near-monopoly power in many local markets, and you can’t really avoid relying on them for your information flow.

The upshot is that the constitutional argument for net neutrality needs to be beefed up to meet the coming constitutional attack from the ISPs. That fight is likely to be lengthy and complex.

  1. You may recognize this problem from the debate over the Citizens United case and the question of whether corporations should have free-speech rights. It would be nice to say absolutely not, but a newspaper is, after all, a corporation, and many corporations can claim to be in the information business.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net