A First Amendment perspective of Net Neutrality

The Internet has boosted democracy and given a voice to previously marginalized segments of society, but the companies providing Americans with that freedom are threatening to take it away. Internet consumers need Net Neutrality to protect their First Amendment rights from corporations. Regulations for an open Internet is an effort by the Federal Communications Commission to guarantee each individual equal access to a variety of Internet web pages. The FCC has sided against corporations in similar cases regarding FCC regulated entities in the hope of expanding the marketplace of ideas. Corporations have the ability to control both what individuals are allowed to say, and what they are exposed to hearing if they are given the same First Amendment protections as individuals.

The FCC is using the Open Internet Order to maintain the use of the Internet as a tool of free expression. The rule protects equal opportunities for each individual to use the Internet in “free, publicly available standards that anyone can access and build to,” in a digital space where all legal websites are equally accessible. (“Open Internet”). Internet service providers are attempting to create different tiers of broadband access, like a slow lane and a fast lane on a highway, in the conduits through which media content is distributed and consumed (Blevins). Corporations such as Verizon argue that they are exercising their free speech by selecting which web services to speed up (Blevins). This would give corporations the power of an Internet gatekeeper which has the potential to block certain viewpoints and promote others, restricting the amount of speech an individual can say or hear.

The First Amendment protects speech and editorial discretion, but that protection ends when an act of expression infringes on the First Amendment rights of others. The public audiences’ interest must be considered when analyzing what is protected by the First Amendment, not just the speaker’s interest, and the role of the government is to support the most speech possible through affirmative policies (Blevins). Equal access to all websites ensures that the public can enjoy both a wide variety of sources and participate in democratic dialogue at a very low cost (“Open Internet”). The current open operation of the Internet that Net Neutrality is attempting to protect has promoted start-up companies, created communities for geographically marginalized groups, and has allowed more people than ever to be actively involved in the democratic process through online petitions and email.

The FCC has shown in the past the importance of expanding the marketplace of ideas through rulings on other FCC regulated entities like broadcast radio and television. The Chain Broadcasting Rule in 1941 gave the FCC the power to keep one company from dominating a single market. In doing so, they ruled that networks could not force their affiliates to broadcast material or restrict their affiliates from broadcasting another network’s material. As recently as 1994 in Turner Broadcasting v. Federal Communications Commission, the court upheld regulations requiring cable companies to serve as conduits for all content, even content not of their choosing (Nunziato). Today, Internet service providers want the power networks had pre-Chain Broadcasting Rule. Without Net Neutrality, corporations could choose which websites to direct traffic to and which websites would lose the ability to reach an audience.

When networks owned broadcasting, their contracts with local affiliates took away the affiliates freedom of editorial discretion guaranteed under the First Amendment. For affiliates to keep their license however, they were required to broadcast in the public interest of their constituents. The Chain Broadcasting Rule changed this. Internet service providers want the power to make contracts with websites for faster access, which gives control of editorial discretion to the corporations instead of the audience making and consuming Internet content. Choosing which editorials are printed in a newspaper is a form of editorial discretion protected by the First Amendment. However, unlike the editorial discretion of newspapers, the public attributes Internet content to the website, not the service provider. Therefore, the editorial discretion of the service provider is unknown while the freedom to publish to the internet and be seen is taken away from both fringe speakers and rival companies (Blevins). For example, the argument made in the appeals court case Verizon v. Federal Communications Commission is, “Comcast might limit its end-user subscribers’ ability to access the New York Times website if it wanted to spike traffic to its own news website.” (Verizon).

If broadcast corporations have First Amendment rights, they would infringe on the rights of the individual to access and speak freely on the Internet. However, the First Amendment protects all speech, even unsupported and unpopular speech, and the rights of a corporation are not greater than the rights of an individual. Net Neutrality prevents Internet service providers from controlling a larger stake in material that is published and seen.

The majority of the data on an Internet service provider’s network does not belong to the company (Blevins). If a corporation like Verizon or Comcast were to slow down or block traffic to websites not owned or supported by their company, they would be guilty of infringing on the rights of the person or group communicating through the slowed website as well as the rights of the general public not receiving that communication. The First Amendment prohibits abridgment of speech, and Net Neutrality attempts to prevent corporations from abridging the speech of individuals and rival companies by directing traffic to an Internet service provider’s corporate-approved websites (Nunziato).

A paid prioritization system would have the most effect on smaller and marginalized speakers and audiences who either are unable to pay the price of the higher tier, or are promoting ideas that are in the interest of an Internet service provider to block. It is the duty of the government to uphold the First Amendment and protect speech and expand the marketplace of ideas. The potential chilling effect on the established press and citizen journalists who have to pay for traffic while also making certain their message does not cause Internet service providers to turn against them curbs their additions to the marketplace of ideas.

Corporations argue that Net Neutrality infringes their First Amendment rights, but the First Amendment rights of corporations are already limited by the government. The government has ruled that the safety or interests of the average citizen comes before a corporation’s protected speech. For example, the government has made rules against false advertising, and forces corporations to say certain statements through mandates to include specific text or warnings on products. The FCC is putting the interest and First Amendment rights of the individual before the rights of corporations through the Open Internet Order in much the same way as these previous laws to protect the rights of the individual.

Net Neutrality protects the First Amendment rights of individuals to freely speak and freely consume material of their choosing from corporate interests. The First Amendment promises equal access to the widest amount of ideas, and Net Neutrality is the Internet’s manifestation of the First Amendment by giving equal access to all ideas, even ideas that are controversial or detrimental to an Internet service providers business. Open participation in the marketplace of ideas and the democratic process is a fundamental freedom for individuals, and the First Amendment prioritizes those rights for the masses, not corporations. For the marketplace of ideas to lawfully expand and include all voices to speak and be heard, Net Neutrality must protect the First Amendment rights of the individual from the corporate interests of Internet service providers.

References

Blevins, John. “The New Scarcity: A First Amendment Framework for Regulating Access to  Digital Media Platforms.” Tennessee Law Review 79.353 (2012). LexisNexis. Web 3            Nov. 2014.

Nunziato, Dawn. “By Any Means Necessary? The FCC’s Implementation of Net Neutrality.”   First Amendment Law Review 8.138 (2009). LexisNexis. Web. 3 Nov. 2014.

“Open Internet.” Federal Communications Commission. Web. 3 Nov. 2014.            <http://www.fcc.gov/openinternet&gt;.

Verizon v. Federal Communications Commission. USCA Case #11-1355. United States Court of Appeals for the District of Columbia Circuit. 2014.

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