Network Neutrality and the First Amendment
Network neutrality is often framed in the context of free speech. In fact, it’s commonly referred to as the “First Amendment of the Internet.” Blocking access to Internet content and applications, without a doubt, implicates some of the fundamental free speech values embedded in the First Amendment. It concerns the free flow of information in “the market place of ideas” and basic autonomy interests of end-users. But do these free speech values inherent in the First Amendment implicate the First Amendment itself? Would network neutrality legislation sit well with our free speech doctrine? And if the First Amendment does not reach the network neutrality debate, should it be reinterpreted to do so?
Jack Balkin argues that contemporary First Amendment doctrine is irrelevant in the face of 21st century free speech issues. The modern day battle, as he sees it, is framed in the following way:
New technologies offer ordinary citizens a vast range of new opportunities to speak, create and publish; they decentralize control over culture, over information production and over access to mass audiences. But these same technologies also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world. These two conflicting effects- toward greater participation and propertization – are produced by the same set of technological advances. Technologies that create new possibilities for democratic cultural participation often threaten business models that seek to commodify knowledge and control its access and distribution. Intellectual property and telecommunications law may be the terrain on which this struggle occurs, but what is at stake is the practical structure of freedom of speech in the new century.
This dynamic certainly implicates free speech. But the way I see it, this is a problem that is blind to the First Amendment itself – which prevents the government from abridging speech. All of this implicates private parties in the private sphere. Without a complete re-articulation of what the First Amendment is designed to guard against, it would seem that the Constitution is inapplicable here, right?
I recently came across a paper that makes an interesting argument. The author argues that network neutrality legislation would likely trigger intermediate scrutiny by the courts, but might not survive it. This is because network neutrality is akin to “must-carry” provisions that the Supreme Court has addressed in other contexts – namely in Turner v. FCC. In order for the court to justify “must carry” provisions, which the author analogizes to network neutrality legislation, the government must demonstrate, with substantial evidence, that a real harm exists and that regulation will alleviate the harm. Because the author thinks that the Court might find the harms surrounding network neutrality “conjectural,” legislation will not survive the inquiry. In the face of this, the author essentially calls for a new First Amendment that recognizes the multi-speaker environment of the Internet.
I have two responses to this argument. First, the paper seems to have been published prior to the Comcast/BitTorrent fiasco which put a very real face on the network neutrality debate. If the harms of discriminatory policies implemented by ISPs were conjectural before the Comcast example, it certainly can’t be considered such in the wake of it. So, if the author’s doctrinal rubric is the one that prevails in the courts, net neutrality legislation might survive a challenge. That is, of course, if such legislation is ever passed. The FTC is apparently warming up to enforcing such policies, but I feel like we’ve been hearing this for years.
Second, it seems that we should keep the First Amendment out of this debate. If network neutrality is justified, it should be because policy makers on the ground see the regulatory merits in mandating non-discriminatory access to Internet content, notwithstanding the economic interests of the ISPs. It seems unnecessary and unwise to create first amendment rights enforceable against private entities.
