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Free Speech and Net Neutrality: Separating Fact from Fiction

James Tucker,
Washington Legislative Office
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January 24, 2008

The debate surrounding net neutrality raises several free speech questions. Is net neutrality really the “First Amendment of the Internet,” as some of its supporters maintain? Are internet service providers (ISPs) right when they argue that any regulation promotes unconstitutional government censorship? Who are the online “speakers” whose speech is protected by the First Amendment? Is it online subscribers? ISPs? Both? Neither? The answers are really much more straightforward than they might appear.

Net neutrality is analogous to the “First Amendment of the Internet,” but it’s not a pure First Amendment issue. I know, you’re probably thinking that this is just the usual lawyer double-talk. Well, you’re right. And you’re wrong. Net neutrality is similar to the First Amendment because of its shared purpose of preventing ISPs from screening or otherwise limiting or censoring what we can say, view and read online. We don’t want these companies to regulate our speech, press, associational or religious rights any more than we want the government to do it.

At the same time, the First Amendment is not directly implicated because unlike the government, your ISP is not a traditional “state actor” – a requirement for triggering First Amendment cases. (Local service monopolies come mighty close though: When was the last time you had a meaningful opportunity to pick your broadband ISP? If your choice is between Comcast and, say, Comcast, or Comcast, it’s not much of a choice. I’m sure you also found that you didn’t have much bargaining power in negotiating your terms of service with your ISP. Kind of sounds like a monopoly, doesn’t it?)

The big ISPs and their supporters (including many of the best-paid lobbyists in D.C.) have done everything they can to paint themselves as champions of the First Amendment. For example, they try to turn the tables by saying that net neutrality is unconstitutional government regulation of the Internet. C’mon! Get real! Net neutrality means what it says: the Internet must be kept neutral, with no one acting as a gatekeeper. The only regulation that occurs under net neutrality is government oversight of the ISPs to ensure that they’re playing fair and not censoring content. The ISPs don’t like it because they want to be able to control what you can access online, and even – as the censorship of NARAL ProChoice America by Verizon Wireless showed us – who is allowed to access it. The actions of the telecoms speak louder than their words.

Perhaps the most bizarre argument making its way (to quote Senator Ted Stevens) “through the tubes” in recent months is that the ISPs are protected speakers under the First Amendment. Again, that’s true… and false. There’s no doubt that ISPs can be speakers who have editorial choice over their landing page and other content they create. But if you’re like me, the last thing you want to see when you access the Internet is more commercials, which is really all their web pages are. Can you hear me now? No! And I don’t want to! That’s why I change the landing page to something I want to see (and I’m sure you do too), such as the ACLU Blog!

A recent article by Randolph May argues that telecoms should be treated as online newspaper editors whose right to control content accessed through their ISPs is protected under the First Amendment. That’s a false analogy.

Aside from Internet content they create, the telecoms clearly are not speakers. They are merely providing the wires through which each of us accesses the Internet, just like many of them do for our phone lines. That’s why the FCC was allowed to regulate the telecom ISPs as common carriers until 2005, and the Supreme Court has said they can still be regulated as “information services” today.

If telecoms aren’t allowed to choose who can use their phone services, or censor and disconnect your phone calls when you say something they don’t like, they certainly can’t do all of those things on the Internet. ISPs exist to provide customer access to the Internet and the range of online expressive and associational activities free of censorship: not the other way around. Otherwise, it would be a case of the tail wagging the dog.

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