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.”
If a court affirms the FCC’s ruling that broadband Internet service providers (ISPs) have no right to exercise editorial discretion over Internet transmissions on their networks, the First Amendment could not stop the government from censoring the transmissions of end users on ISP networks.
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.”