FCC: ISPs can't use First Amendment as shield from network neutrality

The Federal Communications Commission's network neutrality order rejects the notion that Internet service providers enjoy First Amendment protection from its open Internet rules. Here's how the debate played out.

Over the last two years of deliberation about net neutrality, the big ISPs sometimes compared their broadband transmission services to cable television. They did so because a crucial Supreme Court decision upheld the idea that pay-TV providers enjoy First Amendment protections as "speakers." In its order, the FCC took a stance similar to the Supreme Court, calling cable ISP analogies with Turner "inapt." "Unlike cable television operators, broadband providers typically are best described not as 'speakers,' but rather as conduits for speech. The broadband Internet access service at issue here does not involve an exercise of editorial discretion that is comparable to cable companies' choice of which stations or programs to include in their service. In this proceeding, broadband providers have not, for instance, shown that they market their services as benefiting from an editorial presence. To the contrary, Internet end users expect that they can obtain access to all or substantially all content that is available on the Internet, without the editorial intervention of their broadband provider." Bottom line, the FCC insists, its new rules are 'narrowly tailored' to limited goals. They focus on the end user's link to the Internet, barring actions that might "unfairly impede" public access to cyberspace.