The Federal Communications Commission wants to force network service providers—the companies that own and operate the wires, routers and computers that keep the Internet humming—to transmit streaming audio, video and anything else on terms the FCC deems “neutral” regardless of how much bandwidth the data consumes. Network providers say the regulation will eliminate their ability to manage network traffic and effectively clog up the Internet. They argue that such “net neutrality” will deter and destroy private sector investment in the Internet.
But there’s something more important than that at stake. It’s the First Amendment.
In Comcast Cablevision v. Broward County, Judge Donald M. Middlebrooks struck down a county ordinance that forced a cable company to give its competitors equal access to its communication infrastructure. Much like advocates of net neutrality argue today, the county government argued that its “open access” ordinance did not offend the First Amendment because it ensured the transmission of more, rather than less, information by more companies. Judge Middlebrooks rejected that argument, ruling that the First Amendment prohibits government from forcing owners of communication infrastructure to transmit information against their will. He also held that government has no power to force the distribution—or “circulation”—of information because “[l]iberty of circulating is not confined to newspapers and periodicals, pamphlets and leaflets, but also to delivery of information by means of fiber optics, microprocessors and cable.”
Net neutrality should suffer the same fate. Forcing network service providers to transmit information “neutrally” is actually worse than forcing “open access” on cable companies. Because unlike cable companies, network service providers typically do not enjoy government monopoly franchises. For this reason, net neutrality is even more like forcing a printer to publish books, newspapers, periodicals, pamphlets and leaflets on the government’s terms. And when it comes to government seizing command and control over freedom of the press, the First Amendment is anything but neutral.
Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute's Dorothy D. and Joseph A. Moller Center for Constitutional Government.
Tech Law Journal: Comcast Cablevision v. Broward County