Mandated Network Neutrality and the First Amendment: Lessons from Turner and a New Approach

Abstract

The debate over Network Neutrality - one of the most hotly debated public policy issues in the United States in recent years - has been focused primarily on economic and technological aspects of Internet governance. This Article treats Network Neutrality primarily as a free speech issue and comprehensively examines the First Amendment implications should neutrality rules be enacted. The Article explains why the current legal environment does not support a Network Neutrality law and questions, using an analogy to the Supreme Court's rulings in the Turner cases, the constitutionality of potential neutrality rules under existing First Amendment jurisprudence. It traces the jurisprudential difficulty in upholding neutrality rules to the traditional bilateral concept of the First Amendment, which sees any First Amendment conflict as a two-variable equation (a speaker and the Government), making it ill-suited to deal with the multiple-speaker environment of the Internet. The Article identifies the various mechanisms by which the Court has traditionally reduced the multilateral matrix of conflicting First Amendment rights into the familiar bilateral pattern, the result being the deprivation of rights of some speakers. Network Neutrality, the article asserts, protects content providers', and especially users' individual free speech rights, which stem from the First Amendment. The Article calls for the adoption of both network neutrality rules and a new, multilateral concept of the First Amendment, in which the rights of all relevant variables in the constitutional matrix are assessed on equal terms.

Keywords: Network Neutrality, First Amendment, Turner