A Conflict of Visions: How the '21st Century First Amendment' Violates the Constitution's First Amendment
57 Pages Posted: 31 Jul 2015
Date Written: May 20, 2015
Is net neutrality necessary to protect First Amendment values in the 21st Century? Or does the First Amendment actually prevent net neutrality regulation?
At issue is a conflict of visions about the nature of the liberty protected by the First Amendment. Philosopher Isaiah Berlin famously described two clashing concepts of liberty — negative and positive. Simply, negative liberty is freedom from external interference. Positive liberty, on the other hand, is freedom to do something, including having the power and resources necessary to do it.
Proponents of net neutrality regulations (i.e., rules barring broadband providers from engaging in blocking, unreasonable discrimination, and the like) invoke a positive conception of liberty, while opponents of such regulations invoke a negative conception. As a result, the two sides routinely talk past each other. But with few exceptions, our Constitutional rights embody the negative conception of liberty. This includes the right of free speech protected by the First Amendment.
Of course, even under a negative conception of liberty, there are important restraints upon ISPs. Social mores, generally applicable laws, and contracts govern how ISPs use their property, just as with all other private entities. If consumers truly desired net neutrality and punished companies for diverting from such a policy, social pressure and contracts could likely do most of the work to ensure “neutral” outcomes. Meanwhile, if ISPs have so much market power that they can safely ignore consumer preferences, antitrust law will restrain (and, importantly, deter) their abuse of that power.
In this article, we examine the debate over the First Amendment merits of the Federal Communications Commission’s (“FCC”) “Open Internet” Order issued in March 2015.
In Part I, we explore the positive conception of free speech in legal theory, and analyze it under current First Amendment jurisprudence. We argue that net neutrality regulation is not required by the First Amendment. In Part II, we present our primary argument, that prescriptive regulations governing network management (as distinct from a transparency mandate) may actually violate the First Amendment under the compelled speech doctrine — a question that the D.C. Circuit did not have to reach in its most recent net neutrality opinion, Verizon v. FCC, because, while the court upheld the FCC’s transparency rule, it struck down the FCC’s non-discrimination and no-blocking rules on statutory grounds. In Part III, we suggest alternative ways to protect consumers from the harms at which net neutrality regulation is aimed (if they can be substantiated) while minimizing First Amendment problems, including: more clearly establishing a record, tailoring regulation to clear problems, beginning with enforcement of a transparency rule and other existing laws, user education and empowerment, and promoting both broadband competition and deployment.
Keywords: Net Neutrality, Open Internet Order, First Amendment, Internet
JEL Classification: K10, K20, K23, K40, L96
Suggested Citation: Suggested Citation