Network Neutrality and the 21st Century First Amendment

[Commentary] Network neutrality is just one of the many important free speech questions being decided not in Supreme Court decisions but in laws yielding a "legislated First Amendment." Congress and the FCC enact these telecommunications, media, copyright, and privacy laws shaping our speech networks. These laws, effectively, make tweeting or posting on Balkinization more or less possible. Network neutrality, for example, ensures the Internet remains place where, in the Supreme Court's words, "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox." But both sides of the network neutrality debate invoke the First Amendment. On the one hand, network neutrality advocates argue that the policy advances First Amendment values through freedom of speech for all—democratic participation, autonomy, a marketplace of ideas, checking power, speech diversity. Network neutrality, in short, translates the First Amendment for the 21st Century. On the other hand, opponents claim that network neutrality violates the First Amendment rights of phone and cable companies. If the FCC gets it right, a network neutrality rule would preserve the practical freedom of speech Americans experience every day. The FCC's policy likely will have far greater effect on how Americans speak with one another and participate in our democracy than many Supreme Court cases anthologized in First Amendment textbooks. The FCC hearing next week will help highlight that point—and hopefully put a nail in the coffin of arguments around the First Amendment rights of cable and phone companies to block speech.