The First Amendment red herring in the net neutrality debate

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[Commentary] Network neutrality is not a First Amendment issue — or at least, not in the ways supporters suggest.

As any first-year law student knows, the First Amendment says that “Congress shall make no law…abridging the freedom of speech.” The Fourteenth Amendment extends that prohibition to state governments as well. But with rare exceptions not applicable here, the Constitution does not similarly restrict private entities. This limitation, called the “state action doctrine,” is why the New York Times is not compelled to print every letter I write — and why I am not required to let any student speak whenever he or she wishes in my classroom, or my office, or at my dining room table. Simply put, a non-governmental entity may take actions that interfere with a speaker’s desire to communicate a message — and if it does so, the First Amendment is not implicated.

By leaning on the First Amendment, the progressive left suggests that net neutrality is about suppression of speech. Under this framework, the big threat is broadband providers inhibiting access to controversial websites or sites with which they disagree. But such actions are unlikely. The FCC cited no evidence of a broadband provider engaging in such behavior during the two decades before the net neutrality rules went into effect. And any company foolish enough to take such action would be pilloried in the press. In reality, net neutrality is about the more mundane question of vertical integration.

[Lyons is an associate professor at Boston College Law School]


The First Amendment red herring in the net neutrality debate