The Next Fight for Net Neutrality

The congressional battle over net neutrality may be over, and the Federal Communications Commission has voted to regulate the Internet as a public utility. But that just means the fight over net neutrality will likely move back to the courts. And this time, expect the First Amendment to be front and center.

Thus far, legal battles surrounding net neutrality have focused on the FCC’s authority to regulate. Now that the political process has established a statutory responsibility, opponents of net neutrality -- primarily Internet service providers -- need a constitutional argument to ask the courts to reverse the result. Their best bet is to claim that Internet traffic is a form of speech, and the ISPs that carry those messages are speakers. According to this theory, the best metaphor to describe ISPs isn’t utilities delivering electricity or gas to all consumers on the same footing. Instead, the ISPs would ask the courts to think of them as news organizations, conveying the stories and advertising that they choose. If Internet service providers could persuade the courts to think of them as modern news disseminators, rather than as purveyors of a content-neutral commodity, that would bring to bear the full body of free-speech jurisprudence that the Supreme Court has developed over the last century.

[ Feldman is a professor of constitutional and international law at Harvard University]