Ill Telecommunications: How Internet Infrastructure Providers Lose First Amendment Protection

Abstract

The Federal Communications Commission (FCC) recently proposed an Internet nondiscrimination rule: “Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.” Among other requests, the FCC sought comment on whether the proposed nondiscrimination rule would “promote free speech, civic participation, and democratic engagement,” and whether it would “impose any burdens on access providers’ speech that would be cognizable for purposes of the First Amendment.”

The purpose of this Article is to suggest that a wide range of responses to these First Amendment questions, offered by telecommunications providers and civil society groups alike, have glossed over a fundamental question: whether the activities of broadband Internet providers are sufficiently imbued with speech or expressive conduct to warrant protection under the First Amendment in the first place. Yet if this question is not resolved, any subsequent analysis of those who facilitate Internet-based telecommunications will necessarily rest on an incoherent and insufficiently considered definition of the “speech” that is at the heart of First Amendment concerns.

The FCC’s proposed nondiscrimination rule is an attempt to ensure that when access providers route “lawful content, applications, and services” to users on behalf of some third-party information providers, they are also obligated to route lawful content, applications, and services to users from all other information providers. Based on this understanding of the FCC’s nondiscrimination rule as a form of the equal access rule upheld in Rumsfeld, the Article concludes that the nondiscrimination rule does not affect the speech and association rights of access providers. Internet access providers do not accrue the speech rights associated with the third-party content, applications, and other communications that they transport to users through their networks.