Net Neutrality Mandates: Neutering the First Amendment in the Digital Age

Abstract

There is a raging debate over whether Congress should enact new laws mandating so-called net neutrality for broadband Internet service providers ("ISPs"). While there are several policy reasons why net neutrality mandates should not be adopted, an often overlooked and unappreciated legal reason is that net neutrality mandates may violate the First Amendment free speech rights of the ISPs. Net neutrality mandates generally are framed to prohibit ISPs from taking any action to "block, impair or degrade" subscribers from accessing any website, or from "discriminating" against an unaffiliated entity's content by refusing to post or send such content on or over the ISPs' infrastructure. ISPs are speakers for First Amendment purposes, and under traditional First Amendment jurisprudence, it is as much an infringement of free speech to force a speaker to convey messages as it is to prohibit conveyance. This article discusses some of the leading First Amendment cases that address regulation of the media, including those involving speech restrictions placed on broadcasters, cable companies, and newspapers. It concludes that, in today's competitive digital broadband communications marketplace, net neutrality mandates that dictate ISPs' choices concerning the dissemination of content are not likely to survive a challenge under the First Amendment.

Keywords: Net Neutrality, First Amendment, Internet Regulation, Broadband Regulation

JEL Classification: K23, L96, L51