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Net Neutrality Violates First Amendment

Harold Furchtgott-Roth

Court proceedings can touch on the day-to-day lives of ordinary Americans and the minute-by-minute decisions of small businesses. Consider the case of Alamo Broadband, a small Internet service provider from San Antonio, Texas, that is challenging the Federal Communications Commission’s Open Internet Order, which established so-called “net neutrality” regulations. The U.S. Court of Appeals for the District of Columbia will soon hear arguments in the case.

In the Orwellian world of network neutrality, broadband providers such as Alamo may not facilitate speech between willing speakers and willing listeners. Instead, the FCC compels a cacophony in which all voices, no matter how offensive or useless to a consumer, are equally accessible to be equally heard.

America has millions of small businesses, practically all largely unknown. Most Americans have never heard of Alamo Broadband. Most of us never will. Yet Alamo is a small business willing to challenge the excesses of a distant, powerful federal agency attempting to limit that which all Americans hold dear—speech.

Alamo competes in a competitive market for the access to and the distribution of news, information, and entertainment. We American consumers have choices among many broadband providers for that access and distribution. They compete for our business on price and by providing better service. Better service may include faster speeds but also a service that is tailor-made to a group of customers or even an individual customer’s particular needs. A friend might prefer faster access to websites from Romania (or another country or a specific website), and certain websites might be willing to pay to send him faster access. I might have small children and prefer my home not to have access to certain types of websites. Another friend might value having free data on a wireless plan to access music downloads.

Many Internet-based services such a Uber and AirBnB thrive by matching the particularized needs of countless individual consumers with the available particularized service providers. Internet service providers could easily operate in much the same way, matching the particularized needs of a consumer with the particularized availability of that service. Each of us would prefer a service that addresses our specific needs for the access and distribution of information. Each of us would benefit from, and might be willing to pay, to have our Internet access tailored to our needs.

But addressing these and other specific needs of individual customers for broadband service is now unlawful for broadband providers in America.

Under the new FCC network neutrality rules, it is unlawful for a broadband provider such as Alamo to provide faster access to some websites than others, particularly if that faster access is paid for by a sponsor. It is unlawful for a broadband service provider to provide preferential access to some websites such as a particular music site and not others. It is unlawful for a broadband provider to block access to all but those websites proscribed by the government, even if I might request other websites or specific content to be blocked from entering my home.

If broadband access were a car service, the FCC would be effectively outlawing Uber and any service that is not a common carrier taxi service. In an era when the Internet has dramatically reshaped competitive service markets through new and innovative service offerings, the FCC seeks to outlaw all but those services that adhere to norms of common carriage developed a century or more ago.

The FCC network neutrality rules not only ignore the advantages that new technologies offer, but they limit the matching of speakers with audiences.

Broadband providers such as Alamo “speak” when they develop their own content, such as news or sports websites. Without blocking other sites, a broadband provider might competitively choose to favor its own websites or other websites that it prefers for any reason. Broadband providers also “speak” when they transmit the content of others over their networks, because they must choose whether to favor or disfavor that content in some way. These choices—termed “editorial discretion” by the courts—are protected by the First Amendment.

Seizing on the transmission function performed by broadband providers such as Alamo, the FCC argues that broadband providers are unworthy of any First Amendment protections limiting the government’s ability to regulate speech and the press. The agency allows other technology and media companies to exercise some control in the content they carry, yet now demands that broadband companies carry all legal content indiscriminately.

The right to speak and the right not to speak are equivalent. If the government can violate the right not to speak by compelling a provider to transmit certain content over the network, it can also violate the provider’s right to speak by forbidding it from transmitting other content over the network. Unless the D.C. Circuit strikes down the new order, nothing would stop the government from requiring broadband providers to block ideas it deems objectionable.

If the federal government can take these actions against broadband providers such as Alamo, it may do the same against other content providers—or even businesses and individuals. As Justice Robert Jackson explained in dissent in Korematsu, once a dubious legal principle is established, it “then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

The best way to prevent the government from regulating the transmission of speech on the Internet is for the D.C. Circuit to do what courts have always done to protect First Amendment rights: apply “strict scrutiny.” That would require vigorous legal consideration of whether the government’s interests are compelling enough to warrant regulation, and whether those regulations are narrowly tailored and burden no more speech than needed. There is no principled basis for distinguishing the speech of broadband providers from other speakers using older technologies.

As Justice Tom Clark penned in Burstyn v Wilson, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary.” It is no less true for the Internet today than for motion pictures in 1952.

Like other small businesses across America, Alamo tries to meet its customers’ needs. And like small businesses across America, Alamo has no special access to the halls of government in Washington. In providing broadband service, Alamo, no doubt, would rather meet the needs of its customers and not the whims of Washington. Alamo would rather speak to its customers in its own voice and not be a ventriloquist for others, including the federal government.

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