First Amendment Rights and the Ban on FCC’s Net Neutrality

With the public’s increasing reliance on the Internet as a communication channel, there has long been debate on whether the government should treat the Internet Service Providers as common carriers such as telecommunications services. This would treat the Internet as a public utility and thus have it be regulated by the FCC to ensure fair pricing and access. In 2010, FCC adopted a rule that required ISPs to treat all Internet traffic equally, also known as “net neutrality”. However, on January 14, the federal court shot down the FCC’s net neutrality rules. The basis for this decision is that the FCC cannot regulate ISPs as common carriers, because the FCC does not currently classify ISPs as such. This ruling furthers the prevailing view on treating ISPs as private entities. But if ISPs are considered private businesses, how do First Amendment free expression rights come into play on the Internet? Do ISPs, as private businesses offering a paid service, have the right to suppress free speech or block specific content and sites to users?

Similar questions about free speech on private property have come up in the past in cases like Lloyd v Tanner. In Lloyd v Tanner, the Court ruled that private entities are permitted to regulate speech on their own private property as long as it is not providing a public service that a government would have otherwise provided. Here the Court rules in favor of protecting private property rights in the Fifth Amendment. In such cases where expressive conduct is occurring on private property that carries a public nature (like shopping plazas), the Court is always treading the middle ground to balance First Amendment rights and Fifth Amendment rights. The test to apply from Lloyd v Tanner in this case is to see whether or not ISPs provide a service to the public for general purposes. The tricky issue here is that ISPs provide a wide variety of content to their users, including both private and public services. E-commerce websites provide a service that is very similar to a shopping mall. The site has a special designated purpose to invite users to come and purchase their products. On the other hand, governmental websites provide important public services such as submitting tax forms online and signing up for healthcare plans. If ISPs chose to slow down the speed of traffic for these sites or block its contents, this would provide a great hindrance of the government’s function. Because ISPs provide access to a variety of content that is both private and public and with the public’s increasing reliance of the Internet as a communication channel,  ISPs should be classified as a telecommunications service and regulated by the FCC to ensure open access and fair prices. According to the Lloyd v Tanner case, ISPs do provide a significant public service to be classified as common carrier and be required to uphold First Amendment rights.

In Verizon’s appellate brief, it argues that the Open Internet Order deprives broadband network owners like Verizon of their First Amendment rights “by stripping them of control over the transmission of speech on their networks.” In this latest ruling, however, the Court did not rule on Verizon’s First Amendment challenge because the disposition of the case (based on FCC’s lack of standing to impose net neutrality policies on information service providers) rendered it unnecessary. Therefore, it remains an open academic question as to whether information service providers like Verizon have the First Amendment right to promote and publish content and to exercise editorial discretion, and whether authorities like the FCC meet the tests to restrict that right should it choose to. In its appellate brief, Verizon maintains that in restricting broadband network providers’ manner in transmission of speech, the Open Internet Order must be subjected to the O’Brien test; that is, the restriction must be content-neutral, related to a substantial government interest, and narrowly tailored. Verizon argues that the FCC fails to meet its burden. In its respondent’s brief, the FCC argues that broadband providers are not entitled to First Amendment protections because broadband providers are merely “conduit of speech” for others.