Verizon v. FCC, the court decision overturning the Federal Communications Commission’s (FCC) net neutrality rules, didn’t rule directly on the First Amendment issues. It did, however, reject the reasoning of net neutrality advocates who claim Internet service providers (ISPs) are not entitled to freedom of speech.
The court recognized that, in terms of the functionality that it offers consumers and the economic relationships among industry participants, the Internet is as similar to analog cable networks as it is to analog telephone networks. As a result, the court considered most of the issues in the net neutrality case to be “indistinguishable” from those addressed in Midwest Video II, a seminal case addressing the FCC’s authority over cable systems. The court’s emphasis on the substantive similarities between analog cable services, which are clearly entitled to First Amendment protection, indicates that ISPs are likewise entitled to protection.
Net neutrality advocates argued that ISPs are not First Amendment “speakers” because ISPs do not exercise editorial discretion over Internet content. In essence, these advocates argued that ISPs forfeited their First Amendment rights as a result of their “actual conduct” in the marketplace.
Though the court didn’t address the First Amendment issues directly, the court’s reasoning regarding common carrier issues indicates that the “actual conduct” of ISPs is legally irrelevant to their status as First Amendment speakers.
In Verizon v. FCC , the FCC argued that its net neutrality rules couldn’t be considered common carrier obligations with respect to edge providers because ISPs did not have direct commercial relationships with edge providers. But the court concluded that the nature of preexisting commercial relationships between ISPs and edge providers was irrelevant to the legal status of ISPs:
[T]he Commission appears to misunderstand the nature of the inquiry in which we must engage. The question is not whether, absent the [net neutrality rules], broadband providers would or did act as common carriers with respect to edge providers; rather, the question is whether, given the rules imposed by the [FCC], broadband providers are now obligated to act as common carriers.
FCC v. Verizon, No. 11-1355 at 52 (2014) (emphasis in original).
A court must engage in a similar inquiry when determining whether ISPs are “speakers” entitled to First Amendment protection. The question is not whether ISPs would or actually have exercised editorial discretion in the past. There is no Constitutional requirement that ISPs (or anyone else) must speak at the earliest opportunity in order to preserve their right to speak in the future. The question is whether ISPs have the legal option of speaking — i.e., exercising editorial discretion.
Of course, everyone knows ISPs have the ability to exercise such discretion. The court noted there was little dispute regarding the FCC’s finding that that ISPs have the technological ability to distinguish among different types of Internet traffic. Indeed, ISPs’ ability to exercise editorial discretion is the very reason the FCC adopted its net neutrality rules. It is also for this reason that, for First Amendment purposes, ISPs are substantially similar to television broadcasters and analog cable operators for whom First Amendment protections have already been applied.
Some net neutrality advocates attempt to skirt this fact by arguing that ISPs don’t “need” to exercise editorial discretion because today’s ISPs are less capacity constrained than broadcasters and analog cable operators. The essence of this argument is that the First Amendment permits the government to abridge a potential speaker’s freedom of speech if, in the government’s subjective view, the speaker would be able to get along just fine without speaking.
In their zeal to defend net neutrality, these advocates appear to have forgotten that, no matter how comfortable or familiar it may be, a muzzle is still a muzzle. The courts have not.
In Verizon v. FCC, the court recognized that the relationships among ISPs, their subscribers, and edge providers are “indistinguishable” from those present in the analog cable market addressed by the Supreme Court in Midwest Video II:
The Midwest Video II cable operators’ primary “customers” were their subscribers, who paid to have programming delivered to them in their homes. There, as here, the Commission’s regulations required the regulated entities to carry the content of third parties to these customers—content the entities otherwise could have blocked at their discretion. Moreover, much like the rules at issue here, the Midwest Video II regulations compelled the operators to hold open certain channels for use at no cost—thus permitting specified programmers to “hire” the cable operators’ services for free.
FCC v. Verizon, No. 11-1355 at 54 (2014).
The court rejected the FCC’s arguments attempting to distinguish the Internet from cable — arguments that are substantially the same as those advanced by net neutrality advocates in the First Amendment context.
First, the court was unmoved by the argument that Internet content is delivered to end users only when an end user “requests” it, i.e., by clicking on a link. The court noted that cable customers could not actually receive content on a particular cable channel either unless they affirmatively chose to watch those channels, i.e., by changing the channel. (See id.) The court recognized that, “The access requested by [cable video] programmers in Midwest Video II, like the access requested by edge providers here, is the ability to have their communications transmitted to end-user subscribers if those subscribers so desire.” (Id.)
Second, the court considered the capacity differences between the analog cable systems at issue in Midwest Video II and the broadband Internet to be irrelevant to common carriage analysis:
Whether an entity qualifies as a carrier does not turn on how much content it is able to carry or the extent to which other content might be crowded out. A short train is no more a carrier than a long train, or even a train long enough to serve every possible customer.
FCC v. Verizon, No. 11-1355 at 55 (2014). The capacity issue is irrelevant to the applicability of the First Amendment for the same reason. A speaker has the right to refrain from speaking even if speaking would be undemanding.
Finally, the court concluded that the FCC could not distinguish its net neutrality rules from the rules at issue in Midwest Video II using another variation on the “actual conduct” argument. In Midwest Video II, the Supreme Court emphasized that the FCC cable regulations in question “transferred control of the content of access cable channels from cable operators to members of the public.” Midwest Video II, 440 U.S. at 700. In Verizon v. FCC, the FCC argued that its net neutrality rules had not “transferred control” over the Internet content transmitted by ISPs because, “unlike cable systems, Internet access providers traditionally have not decided what sites their end users visit.” (FCC Brief at 65) The court did not consider the “actual conduct” of ISPs a relevant distinction:
The [net neutrality] regulations here accomplish the very same sort of transfer of control: whereas previously broadband providers could have blocked or discriminated against the content of certain edge providers, they must now carry the content those edge providers desire to transmit.
FCC v. Verizon, No. 11-1355 at 56 (2014).
Based on the court’s repeated emphasis on the substantive similarities between analog cable services, which the Supreme Court has held are “speakers”, and Internet services, it should now be obvious that ISPs are also “speakers” entitled to First Amendment protection. The use of Internet protocol rather than analog cable technology to deliver video services changes neither the economic nor the First Amendment considerations applicable to network operators, edge providers, and end users.
To be clear, application of the First Amendment to ISPs does not automatically mean that net neutrality rules would be unconstitutional. Whether a particular regulation is violative of the First Amendment depends on the applicable level of judicial scrutiny, the importance of the government interest at stake, and the degree of relatedness between the law and its purpose. Whether net neutrality rules would survive First Amendment scrutiny would thus depend in part on their own terms and the government’s rationale for adopting them.
That is why the applicability of the First Amendment to ISPs is so important. When Constitutional rights are at stake, the government has stronger incentives to adopt regulations that are well-reasoned and likely to achieve their intended goals than it does when it makes rules in the ordinary administrative context.
- – -
 The doctrine of constitutional avoidance counsels against deciding a constitutional question when a case can be resolved on some other basis. Once the court concluded that the FCC exceeded its authority in adopting the anti-blocking and anti-discrimination rules, the court had no need to address their constitutionality.
 Even if the “actual conduct” argument were valid, it would not control application of the First Amendment to ISPs. The fact that ISPs don’t exercise editorial discretion was motivated in part by FCC policies that chilled or prohibited the exercise of such discretion.
- In the dial-up era, telephone companies were subject to common carrier regulations prohibiting their exercise of editorial discretion over Internet content transmitted by third-party companies (e.g., America Online, who exercised editorial discretion over Internet content) while reducing economic incentives for telephone companies to provide their own Internet services;
- Though the FCC exempted cable broadband services from common carrier regulation relatively early in the broadband era, the FCC simultaneously asked whether and to what extent it should impose editorial restrictions on such services;
- In conjunction with its subsequent order extending the cable broadband exemption to telephone companies, the FCC issued a Broadband Policy Statement announcing that it would take action if it observed ISPs exercising editorial discretion; and
- After the DC Circuit ruled that the Broadband Policy Statement was unenforceable, the FCC adopted the net neutrality rules that the court struck down in Verizon v. FCC.
This history indicates that the “actual conduct” of ISPs evidences nothing more than their intent to comply with FCC rules and policies. It would be absurd to conclude that ISPs forfeited their right to First Amendment protection by virtue of their regulatory compliance.