Network neutrality and broadband service providers' First Amendment right to free speech.

• Author: Shell, Meredith

TABLE OF CONTENTS I. INTRODUCTION II. NETWORK NEUTRALITY AND THE DEBATE OVER BSPS' FIRST AMENDMENT RIGHTS A. The Debate Over the Order B. First Amendment Protections for Speech Transmitters 1. Free Speech Rights for Newspaper Editors, Radio Broadcasters, and Cable Television Operators 2. The First Amendment Is Not Absolute: Justifying Free Speech Restrictions III. ANTI-BLOCKING AND ANTI-DISCRIMINATION RULES WOULD SURVIVE FIRST AMENDMENT SCRUTINY A. BSPs' Transmission of Internet Content Does Not Constitute Protected Speech 1. The Physical Qualities of the Internet Eliminate the Need for an "Editor" 2. BSPs Do Not Engage in Active Editorial Discretion, but Instead Merely Act as Conduits of Speech Because Their Transmission of Third-Party Original Content Does Not Involve Any Identifiable Message B. Even if BSPs' Transmissions Are Speech, Network Neutrality Rules Do Not Violate the First Amendment Because They Serve a Substantial Government Interest 1. The FCC Has the Statutory Authority to Impose No Blocking and Nondiscrimination Rules on BSPs 2. Anti-Blocking and Anti-Discrimination Rules Further Important Government Interests 3. The Government's Interests in Preserving an Open Internet Are Unrelated to the Suppression of Free Speech 4. The Incidental Restriction on Alleged First Amendment Freedoms Is No Greater Than Is Essential to the Furtherance of That Interest IV. MOVING FORWARD: CLARIFYING FIRST AMENDMENT RIGHTS IN THE INTERNET AGE V. CONCLUSION I. INTRODUCTION

The emergence and continued pervasiveness of the Internet has sparked a controversy over whether there is a substantial social interest in maintaining open access to that Internet through network neutrality. (1) Put simply, network neutrality is "the principle that broadband networks should not discriminate between favored and disfavored Internet content, services, and applications." (2) The archetypical example of a non-neutral network is when broadband service providers ("BSPs"), such as Verizon or Comcast, treat one kind of Internet traffic differently from another. (3) For example, if Netflix--a website providing on-demand streaming of movies and television shows--forms a partnership with Comcast, Comcast may treat this traffic more favorably, allowing for faster streaming and ultimately a more enjoyable experience for Internet users. Further, if Netflix does not form a partnership with Verizon, Verizon might treat Netflix traffic less favorably, slowing the speed at which these videos stream. This slowing could lead Verizon users who wish to stream on-demand videos but hope to avoid the slow streaming rate on Netflix to select a competing video service--one that has partnered with Verizon and therefore offers faster streaming speeds.

To address concerns about such network discrimination, in December 2010, the Federal Communications Commission ("FCC") issued the Open Internet Order ("Order"). (4) It contains three rules--a "Transparency" Rule, a "No Blocking" Rule, and a "No Unreasonable Discrimination" Rule--that act together to generally prohibit BSPs from prioritizing some Internet content over other content. (5) In January 2014, the U.S. Court of Appeals for the District of Columbia Circuit vacated the No Blocking and No Unreasonable Discrimination Rules in Verizon v. Federal Communications Commission, holding that these rules exceeded the FCC's authority under the Communications Act to regulate providers of "information services." (6) Although the court agreed with the FCC that section 706 of the Act (7) furnishes the agency with considerable authority to regulate BSPs, (8) the court nevertheless held that the FCC's rules impermissibly treated BSPs as common carriers. (9) Because the court resolved Verizon's claims on statutory grounds, it had no occasion to address Verizon's arguments that the Order violated the First and Fifth Amendments to the Constitution. (10)

Despite the FCC's loss in Verizon--and its earlier loss in Comcast Corp. v. Federal Communications Commission (11)--in the agency's efforts to require BSPs to abide by network neutrality, the FCC opened a new docket in February 2014 "to consider the court's decision and what actions the Commission should take, consistent with our authority under section 706 and all other available sources of Commission authority." (12) FCC Chairman Tom Wheeler pledged to "propos[e] rules that will meet the court's test for preventing improper blocking of and discrimination among Internet traffic." (13) If the FCC adheres to the "court's test," the agency will likely promulgate rules that restrict the circumstances in which BSPs may block or discriminate against Internet traffic, while also leaving "substantial room for individualized bargaining and discrimination in terms" among BSPs and content providers. (14) Even if the FCC promulgates new network neutrality rules that fall within the agency's statutory authority, however, it remains an open question whether regulation that limits the ability of BSPs to block or discriminate against Internet traffic violates the First Amendment.

This Note addresses this constitutional question, concluding that hypothetical FCC rules that limit BSPs' ability to block or discriminate against Internet traffic--referred to herein as "anti-blocking" and "anti-discrimination" rules--would not violate BSPs' First Amendment rights because BSPs' actions do not constitute speech and, therefore, are not constitutionally protected. Furthermore, even if BSPs' activities are considered speech, this Note argues that, under the intermediate scrutiny test set forth in United States v. O'Brien, (15) regulation of this speech is justified to further the legitimate government interest of maintaining an open Internet.

Part II of this Note reviews the background of this contemporary debate, demonstrating how the Order and subsequent Verizon lawsuit (16) brought the issue of whether government-mandated open Internet violates BSPs' First Amendment rights to a head. Part III argues that if a BSP were to challenge the constitutionality of future FCC anti-blocking and anti-discrimination rules, the Supreme Court should determine that BSPs do not enjoy First Amendment protection in their Internet transmissions, because they do not constitute protected speech. Part III also contends that even if the Court were to determine that BSPs are protected speakers because they exercise active editorial discretion, a regulation mandating network neutrality would not violate the First Amendment because the government has a substantial interest in maintaining an open Internet. Finally, Part IV outlines how the Court should examine the role that BSPs play and whether they function in the same way that a newspaper editor or cable television operator does in exercising editorial discretion.

2. NETWORK NEUTRALITY AND THE DEBATE OVER BSPS' FIRST AMENDMENT RIGHTS

   When the FCC issued the Order, it rekindled a debate over whether the Commission had the authority to impose rules mandating an "open Internet" for broadband Internet consumers. (17) According to the FCC, the Order was "an important step to preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression." (18) The FCC set forth three rules--two of which are directly relevant to this Note's discussion--to preserve Internet openness. (19) First, the Order's No Blocking Rule prevented fixed broadband providers from blocking "lawful content, applications, services, or non-harmful devices" and mobile broadband providers from blocking "lawful websites" or "applications that compete with their voice or video telephony services." (20) Second, the No Unreasonable Discrimination Rule prevented fixed broadband providers from unreasonably discriminating in the transmission of "lawful network traffic." (21)

   Although the D.C. Circuit vacated these two rules in Verizon, finding that the FCC lacked the statutory authority to promulgate them, this Note addresses a legal question the court has yet to examine: whether requiring BSPs such as Verizon and Comcast to provide open Internet violates the First Amendment. (22)

   1. The Debate Over the Order

      Among its various claims, Verizon argued that the Order abridged BSPs' First Amendment right to free speech. (23) Specifically, Verizon asserted that the Order stripped broadband network owners of "control over the transmission of speech on their networks." (24) Other critics of the open Internet regulations argued that although BSPs might not be direct speakers, they still maintain editorial discretion over the content they provide Internet users, just as a newspaper or cable television operator does. (25) Because the Supreme Court has extended First Amendment protections beyond direct speakers to include those who exercise editorial discretion through the selective transmission of the original speech of others, (26) Verizon contended that the rules infringed upon its right to select the messages transmitted by its network. (27)

      According to Verizon, BSPs engage in speech not only when they create their own content, but also when they transmit the opinions and ideas of millions of individuals over the Internet. (28) Citing Turner Broadcasting System, Inc. v. Federal Communications Commission ("Turner F), (29) Verizon argued that BSPs enjoy First Amendment protection because the Constitution protects those who transmit the speech of others when they select which speech to transmit and which to exclude. (30) Verizon further argued that BSPs may need the ability to prioritize some Internet traffic over other traffic in order to effectively maintain their service, and that the resulting increased efficiency benefits consumers. (31) Other opponents of the Order argued that "network operators should be allowed to innovate freely and differentiate their networks as a form of competition that will lead to enhanced service offerings for content...