Providing Internet access isn't speech

|The Volokh Conspiracy |

Disclaimer: I have been serving as a consultant to the FCC in the net neutrality proceeding and worked on the order and its legal defense, so you can add whatever grains of salt you deem appropriate.

Commentators so far have not focused on the First Amendment arguments in the D.C. Circuit's net neutrality opinion. Some of the challengers argued that the net neutrality rules violated their free speech rights by forcing them to transmit messages that they might not want to carry. As I wrote in a 2011 law review article, I think this is wrong: mere transmission of speech doesn't implicate the First Amendment, for broadband providers or FedEx. A contrary argument means that Ma Bell, with the best lawyers money could buy, missed a winning constitutional argument against its telephone networks being treated as common carriers—they were transmitting speech! The key under Supreme Court jurisprudence is that a person or company is engaged in substantive communication beyond mere transmission. That is why the Supreme Court's Turner Broadcasting v. FCC opinion emphasized the choice that cable companies make regarding which channels to air. If mere transmission were sufficient, then Turner wouldn't have relied on the editing function as giving rise to First Amendment interests. As I noted in the article, if a broadband company decided to offer a curated Internet experience, then it would be engaging in speech.

The FCC made the same distinction. The net neutrality rules apply only to broadband Internet access that provides transmission to and from "substantially all Internet endpoints," and services that provided an edited Internet would not be subject to the net neutrality rules.

And, of course, the First Amendment would apply if the FCC were to try to regulate any person or company's own communications (e.g., on their own website). And as I noted in another article, generating your communications via algorithm is speech. The key is that you are creating messages.

The D.C. Circuit agreed with the arguments above and rejected application of the First Amendment. Unlike most of the other arguments in this case, there was of course no issue of deference. The D.C. Circuit was persuaded that, when broadband providers are simply transmitting, they are not speaking.

I obviously think the D.C. Circuit was right, but I want to emphasize the breadth of the counter-argument. If all transmission of bits is subject to heightened judicial scrutiny (as it would be under First Amendment jurisprudence), then judges would routinely invalidate regulation of a huge and growing range of activity in our increasingly digitized world. Arguments for and against purely economic regulation should be made on their own terms, not by invoking unmoored notions of what speech entails.