Promoting and Infringing Free Speech? Net Neutrality and the First Amendment.

• Author: Timmer, Joel

Table of Contents I. Introduction 2 II. History of Net Neutrality 3 A. 2015 Open Internet Rules 5 B. Elimination of Net Neutrality 8 III. Does the Provision of Internet Access Constitute Speech? 11 A. Tests for Speaker Status 12 B. Compelled Speech Cases 14 C. Cases Finding First Amendment Protection for ISPs Providing Internet Access 16 D. Editorial Discretion 18 IV. Level of Scrutiny 22 A. Medium-Specific Considerations 23 B. Intermediate Scrutiny 24 C. Government Interest 25 D. Advancement of Government Interest 26 E. "Special Characteristic" of the Medium Being Regulated 28 F. Not Burdening Substantially More Speech Than Necessary 34 V. Conclusion 36 I. INTRODUCTION

The need for net neutrality rules has been hotly and highly debated in recent years. Put in place by the Obama-era FCC in 2015, (1) and eliminated by the Trump-era FCC two years later, (2) the rules generally prohibited ISPs from engaging in practices that favor some online content or services over others. Proponents of the rules say they are necessary to prevent service providers from stifling competition in the provision of online content and services, for example, by blocking or slowing consumer access to services that compete with those of the ISPs themselves, or by charging online content or service providers for faster connections to consumers over that of their rivals. (3) On the other hand, those opposed to the rules say they are unnecessary and that they hinder investment and innovation by ISPs. (4)

With the Internet being a primary place for the exchange of ideas and information in modern society, the rules necessarily implicate free speech principles. Without the rules, proponents say, service providers could skew the marketplace of ideas to benefit themselves or those willing to pay. (5) On the other hand, ISPs have argued that by mandating the manner in which they carry others' online speech, their own free speech rights are impaired. (6)

A potential issue with net neutrality regulation, then, is whether it infringes on the First Amendment speech rights of ISPs. There has been little case law on this point. In two cases, federal district courts have ruled that ISPs' free speech rights are infringed upon when the government regulates the manner in which they provide service. (7) The D.C. Circuit, however, in a challenge to the FCC's 2015 net neutrality rules, determined that the First Amendment was not implicated by net neutrality regulation. (8) Prior to becoming a Supreme Court Justice, (9) Judge Kavanaugh, in a dissent to that opinion, came to the opposite conclusion: that net neutrality did infringe on the First Amendment rights of ISPs. (10)

This article examines the First Amendment issues that might be implicated by net neutrality regulation. Although the elimination of net neutrality requirements also eliminates the potential First Amendment concerns with the rule, there is great interest in reinstating the rules, (11) which would revive the First Amendment concerns. In analyzing those concerns, Part III addresses the question of whether ISPs even engage in speech when offering Internet access is considered. While the weight of authority leads to the conclusion that providing Internet access does not qualify as speech, Part IV considers the analysis courts would apply should the provision of Internet access be determined to constitute protected speech. Next considered is whether the particular medium being regulated affects the standards to which the speech restriction will be subject. Concluding that the fact that Internet speech is being regulated does not alter the test to be applied to the restriction, the article then observes that as a content-neutral regulation, it would be subject to intermediate scrutiny. In applying intermediate scrutiny, the importance of the government's identification of some "special characteristic" of the medium being regulated to help justify the intrusion on speech is discussed. With net neutrality, that characteristic has been identified as the ability of ISPs to act as "gatekeepers" who can restrict the access of online content providers to the service providers' users. By preventing ISPs from acting as gatekeepers who can restrict the flow of online speech, net neutrality would likely be found to advance an important government interest and survive intermediate scrutiny. Before reaching these First Amendment issues, however, the recent history of the FCC's actions on net neutrality is reviewed.

2. HISTORY OF NET NEUTRALITY

   Although there were efforts to enforce analogous principles prior to 2005, (12) it was then that net neutrality regulation began to resemble its most recent form when the FCC released its Internet Policy Statement, laying out principles meant to protect and promote an open Internet. (13) These "principles were intended to ensure consumers had the right to (1) access the lawful Internet content of their choice; (2) run applications and use services of their choice; (3) connect their choice of legal devices that do not harm the network; and (4) enjoy competition among network providers, application and service providers, and content providers." (14) Through 2011, the FCC's primary mechanisms for enforcing these principles was to require compliance with the principles as a condition for the FCC's approval of several mergers involving ISPs subject to its review. (15) At the same time, the principles were "applied to particular enforcement proceedings aimed at addressing anti-competitive behavior by service providers." (16)

   In 2010, the D.C. Circuit Court of Appeals found that the FCC had failed to properly identify a valid basis of legal authority to support these actions, (17) thereby invalidating the FCC's enforcement of those principles. (18) This led the FCC, in 2010, to adopt an Open Internet Order codifying the policy principles of the Internet Policy Statement. (19) The 2010 Order imposed three requirements on ISPs: (1) no blocking, (20) (2) no unreasonable discrimination, (21) and (3) transparency. (22) In Verizon v. FCC, (23) in a court challenge to these rules, the D.C. Circuit Court of Appeals determined that the FCC did have the authority to regulate broadband ISPs, (24) and that "the FCC had demonstrated a sound policy justification for the Open Internet Order." (25) Nevertheless, the Verizon court struck down the no-blocking and antidiscrimination rules on the grounds that these rules impermissibly imposed Title II common carrier obligations on broadband providers, when it had not classified the providers as such. (26)

   1. 2015 Open Internet Rules

      The FCC once again imposed net neutrality regulations in 2015. (27) This time, the FCC classified the provision of broadband Internet access as a telecommunications service, meaning that common carrier obligations could be imposed. (28) In its 2015 Open Internet Order, the FCC identified three practices that "invariably harm the open Internet--Blocking, Throttling, and Paid Prioritization" and banned each of these practices in the provision of "both fixed and mobile broadband Internet access service." (29) The "No Blocking" rule required that broadband Internet access providers provide their subscribers with "access to all (lawful) destinations on the Internet" by prohibiting the blocking of "lawful content, applications, services, or non-harmful devices." (30)

      The "No Throttling" rule prohibited ISPs from impairing or degrading lawful Internet traffic. (31) This rule applied to conduct "that is not outright blocking," but that "impairs, degrades, slows down, or renders effectively unusable particular content, services, applications, or devices...." (32) The FCC feared that ISPs might "avoid the no-blocking rule by, for example, rendering an application effectively, but not technically, unusable." (33) The FCC provided the example of a broadband provider providing its subscribers with slower access to a third-party over-the-top video service that competed with such a service of its own. (34)

      The "No Paid Prioritization" rule prevented ISPs from providing preferential treatment to certain Internet traffic in exchange for money or other consideration, or to benefit an affiliated entity. (35) A concern behind the adoption of this rule was that allowing paid prioritization would create a "'fast' lane [on the Internet] for those willing and able to pay and a 'slow' lane for everyone else." (36) Here, the FCC provided the example of independent filmmakers and user-created videos being at a disadvantage against video provided by the major studios, who have the resources "to pay priority rates for dissemination of content." (37)

      All but the no paid prioritization rule provided exceptions for practices that constituted "reasonable network management." (38) The FCC recognized that this was necessary for the optimal functioning of the ISPs' networks. (39) However, the FCC emphasized that any such practice "that would otherwise violate [a] rule must be used reasonably and primarily for network management purposes, and not for business purposes." (40) Furthermore, the FCC recognized that in addition to the three practices it had prohibited, there may be other practices, "current or future... that cause the type of harms [the] rules are intended to address." (41) As a result, the FCC also adopted a "no-unreasonable interference/disadvantage standard," which allowed the FCC, "on a case-by-case basis," to prohibit "practices that unreasonably interfere with or unreasonably disadvantage the ability of consumers to reach the Internet content, services, and applications of their choosing or of [online content and service] providers to access consumers using the Internet." (42)

      The basis behind these rules was the FCC's belief that broadband Internet access providers had both the incentives and ability to threaten Internet openness. (43) As the FCC described it, an open Internet enables a "virtuous cycle of innovation" by...