Updated on Dec. 28 at 9:50 a.m.
Opposing factions in the net neutrality debate can finally agree on one thing: The First Amendment is at stake. But don't expect them to agree on why.
Supporters of net neutrality rules intended to preserve an open Internet have long invoked free speech in making their case. But those siding with cable and telecommunications companies are starting to contest that principled ground as they voice their opposition to such regulation.
Under rules proposed by the Federal Communications Commission in October, Internet service providers are forbidden from distinguishing among Web sites or applications in how they process traffic. Proponents of the rules say such regulation is needed to prevent the best-funded Web sites from buying a competitive leg up that delivers their content faster than everyone else's. They argue the FCC measures reinforce the spirit of the First Amendment by fostering an Internet where myriad voices have a chance to be accessed and heard.
"There are two very different views of the First Amendment being asserted," said Randolph May, an opponent of the rules and president of the Free State Foundation, a think tank promoting free market policies. National Cable & Telecommunications Association President Kyle McSlarrow breathed life into the other side of the debate this month with a speech at the Media Institute questioning whether FCC rules would pass First Amendment muster.
His free speech rationale? McSlarrow argued that strict new FCC regulations might infringe on the ability of content providers to speak "how" they wish by preventing them from paying for better service; might prevent innovations by ISPs that would better facilitate free speech; could amount to "forced" speech; and might impact the delivery of high-bandwidth services such as video programming by laying a path toward government regulation of bandwidth use.
Fundamentally, McSlarrow said, the First Amendment is a limitation on government power, not an invitation for new rules. "Whatever our present-day policy disagreements about net neutrality, or even differing politics, let's not forget that the First Amendment is framed as a shield for citizens, not a sword for government," he said in the speech.
That line of argument has raised eyebrows among proponents of the rules. Longtime tech journalist Art Brodsky, now at Public Knowledge, quipped that anti-regulation advocates have only ventured into free speech arguments after their economic argument "wasn't getting anywhere."
"They're in the spaghetti-on-the-wall phase," he said. "In our view, [cable and telecom companies] are transporters of data; they are not speakers."
Rules proponent Marvin Ammori, a law professor at the University of Nebraska and a senior adviser to Free Press, raised similar doubts about anti-regulatory First Amendment arguments. Net neutrality rules, Ammori blogged this month, are dissimilar to such First Amendment insults as regulations "requiring a schoolchild to pledge allegiance to the flag, despite her religious objections, or forcing a parade to include gay rights activists."
"Whatever the speech or press rights of corporations, a first-year law student can tell you the cases are not analogous," he continued.
The fight to claim the First Amendment banner is unlikely to disappear anytime soon and has popped up recently in several high-profile venues. Conservative commentator Glenn Beck stirred controversy in October when he said net neutrality rules would work to "control content." Sen. Al Franken, D-Minn., inserted neutrality concerns into Justice Sonia Sotomayor's confirmation hearings. And just last month, White House Deputy Chief Technology Officer Andrew McLaughlin said net neutrality rules would prevent censorship by cable companies.
But long before the debate spilled out into public, a handful of academics and think-tankers were working behind the scenes to assert that net neutrality rules would tread on free speech.
May, who was among the earliest to raise free speech concerns in opposition to new rules, was pleased to see his view receive more attention in recent weeks. He saw the development as a natural progression from "policy arguments" about the impact of rules to the "legal questions" about the regulations' validity. "That's the nature of the way things are argued typically before the FCC," he said.
As the new rules are actually implemented, those on both sides can pull out an accordion file of previous cases to support their First Amendment claims. Rules advocates cite last year's standoff between Comcast and BitTorrent in which the FCC ultimately chided the ISP for network management practices that allegedly discriminated against the file-sharing application. The case may have undermined the First Amendment arguments of rules opponents because the ISP's free speech argument was written off "with no more than a footnote," according to Ammori.
Rules proponents also argue that businesses whose services relate to speech have a long history of raising the First Amendment when new rules are nigh. "Any time there has been regulation that affects their business, they try to go back to their First Amendment rights," he said. "[The rationale is], 'Oh look, speech is involved. Therefore, since speech is involved, we have to make sure government isn't involved.'"
In that vein, supporters hoping to undermine the First Amendment assertions of cable and telecom companies may look to Supreme Court decisions that have shot down businesses' free speech arguments in the past, including 1978's FCC v. National Citizens Committee, which upheld an FCC rule limiting newspapers' ability to buy local broadcast stations and 1945's Associated Press v. U.S., an antitrust case.
Rules opponents, meanwhile, also look to history. They say net neutrality rules show tinges of the FCC's Fairness Doctrine, which forced broadcast licensees to present issues in a balanced light with equal time for opposing views. The FCC revoked the policy in 1987. They also look to such appellate court decisions as 1995's U.S. v. Chesapeake & Potomac Telephone Co. of Virginia, which probed whether government could bar local phone service providers from providing video programming in an attempt to prevent local media monopolies. The companies contested such actions by asserting that video programming is a form of speech, and the Fourth Circuit handed them a win.
Some rules opponents also point to Turner Broadcasting System v. FCC, a 1994 Supreme Court decision that acknowledged cable companies as First Amendment speakers and required that harms addressed by regulation be "real, not merely conjectural." Rules proponents respond that Turner does not apply and note that the Supreme Court rejected the free speech assertions of cable operators who were forced to carry local broadcast stations.
Other cases supporting the First Amendment rights of ISPs, according to May, include 1986's Pacific Gas & Electric v. Public Utilities Commission, which struck down requirements that "compelled" speech, and 1974's Miami Herald Publishing Co. v. Tornillo, which struck down a Florida state law that forced newspapers to grant equal space to political candidates under certain circumstances.
All this history is not lost on the FCC, which acknowledges the free speech concerns of rules opponents in its notice of proposed rulemaking. The notice asks if the regulations "impose any burdens on access providers' speech that would be cognizable for purposes of the First Amendment, and if so, how." It further questions whether such burdens might "be outweighed by the speech-enabling benefits of an open Internet that provides a non-discriminatory platform for the robust interchange of ideas."
Rival groups are sure to exercise their First Amendment rights weighing in.