Battle Over FCC’s Net Neutrality Rules May Redefine Free Speech

The Federal Communications Commission’s defense of its rules regulating broadband services in court has a free speech element that could have wide implications for how the Internet should function and consumers’ access to online content.

The FCC not only faces a challenge to its authority to make the net neutrality rules. But both sides in the case are also citing First Amendment rights to free speech, potentially setting up a legal showdown on the issue.

David Post, a retired Temple University law professor and a former clerk for Supreme Court Justice Ruth Bader Ginsburg, said the disagreement hinges on whether the net neutrality rules deprive Internet-service providers of First Amendment rights to “editorial discretion.” But Post noted the impact would depend on whether the court chooses to address the issue directly.

The FCC put its Open Internet Order into effect in June, after the U.S. Court of Appeals for the D.C. Circuit rejected Internet service providers’ request to stop them. The order prevents broadband providers from discriminating between content creators. The providers can’t block lawful content, slow down delivery based on content or allow paid prioritization of content.

Broadband providers say the order violates their right to free speech. The FCC and its supporters also cited the First Amendment in their responding arguments, saying broadband providers are not engaging in free speech when they transmit information.

The appeals court is expected to hear oral arguments in the case beginning on Dec. 4.

At stake is whether service providers such as Comcast, Verizon and AT&T are the gatekeepers of cyberspace controlling the flow of data or whether they have to allow equal access to all, a signature initiative for President Barack Obama. A court ruling for the broadband providers could essentially say that transmitting data is a form of free speech in which the FCC can’t interfere.

“Broadband providers are First Amendment speakers because they ‘engage in and transmit speech,'” according to the brief filed by communications architect Daniel Berninger and Alamo Broadband, a small, Texas-based Internet provider. Alamo is one of several companies leading the lawsuit against the FCC’s net neutrality order.

“The Open Internet conduct rules strip providers of control over which speech they transmit and how they transmit it,” Alamo added in its brief.

The FCC and its supporters argue ISPs “are not acting as speakers delivering their own messages, but instead serve as conduits for the speech of others.”

But if the agency loses the case, it may have to scramble for a new approach to achieve its goal of ensuring ISPs don’t interfere with what content reaches consumers and how quickly it reaches them. The decision could affect everything from the news articles people can read to the speed of streaming online videos.

But Post, referring to a ruling in a 1994 Turner Broadcasting case, said the FCC supporters may find it difficult to prevail in the view that broadband-service providers don’t have free-speech rights.

“Turner applied a kind of ‘intermediate scrutiny’ to the speech-compulsion rules,” he said. The court could find that while the service providers’ editorial discretion gets First Amendment protection, the burdens imposed by the rules are outweighed by important interests at stake, he added.

Free Speech for Whom?

Alamo Broadband argued its rights would be trampled by the rules because they “compel the carriage of others’ speech, including speech with which broadband providers disagree. The prioritization rule prohibits broadband providers from elevating their speech over others’ and selling the ability to prioritize some speech over other speech.”

Alamo further argues that the rules “deprive broadband providers of their editorial discretion by compelling them to transmit all lawful content, including Nazi hate speech, Islamic State videos, pornography, and political speech with which they disagree,” according to the brief.

The FCC contends that ISPs are transmitting information, not creating it, and as a result the rules wouldn’t impact their free speech.

“When a user directs her browser to the New York Times or Wall Street Journal editorial page, she has no reason to think that the views expressed there are those of her broadband provider,” the FCC wrote in its brief.

The American Civil Liberties Union and the Electronic Frontier Foundation, two civil-rights advocacy groups, submitted a joint brief taking the FCC’s argument a step further, saying consumers’ First Amendment interests are the ones at stake.

“Absent effective neutrality rules, ISPs can – and some undoubtedly will – act as gatekeepers to digital information, rather than neutral conduits for speech,” the groups wrote. “Content providers will have their online speech throttled and censored. The Open Internet Order sets forth rules that are necessary to prevent such discrimination and protect this free marketplace.”

Alamo Broadband and the United States Telecom Association are leading opposition to the rule, challenged in court soon after it was adopted earlier this year.

A Question of Authority

The case is the latest challenge to the net neutrality rules.

The Appeals Court set a roadmap for the agency in 2014 after ruling that parts of its 2010 order mandating net neutrality were invalid because the agency didn’t have authority over Internet providers.

The FCC has since reclassified Internet services as telecommunications services and moved ahead with regulation under the 1934 Communications Act and the 1996 law that updated it.

That reclassification has been a major point of opposition from telecommunications companies and some ISPs.

The FCC defended the change, citing a 2005 Supreme Court ruling that said the term is best defined by the FCC itself.

The rules are “well within the statutory authority that Congress has vested in the Commission” and “reaffirm the Commission’s longstanding policy of restraining gatekeeper power and the decade-old policy preserving the open Internet,” it added.

Business groups including the National Association of Manufacturers, the Business Roundtable and the U.S. Chamber of Commerce are lobbying to dismantle the net neutrality rules. The reclassification, they say, stands on shaky ground.

“Title II of the Communications Act of 1934 is a poor fit for regulating the most technologically advanced and dynamic information system in history: It is Depression-era legislation adopted to regulate the telephone monopoly, and was itself cribbed from a 19th Century railroad statute,” the groups wrote.

They went on to use the FCC’s words against it, noting a statement after the enactment of the 1996 Telecommunications Act in which the FCC said, “We recognize the unique qualities of the Internet, and do not presume that legacy regulatory frameworks are appropriately applied to it.”

Congressional Divide

Lawmakers from both parties have said they support the need for ISPs to deliver Web pages at the same speed without demanding payments for faster delivery or attempting to slow down or block others.

But how the FCC is using its regulatory powers for crafting those net neutrality rules has been a point of partisan divisions in Congress.

Senate and House panels added riders to the fiscal 2016 Financial Services spending bills that would prevent the FCC from regulating Internet speeds. Republican lawmakers pushing the ban have said the FCC should not implement the net neutrality rules until the pending court case is resolved.

Democrats, meanwhile, defend the net neutrality rules. In a group brief, 30 democratic members of the House and Senate said the FCC “has done precisely what Congress intended the Commission to do” by reclassifying Internet service as a telecommunications service.