Will Decision Striking Video Game Ban Squelch Open Internet Regulations?

Marketers are cheering a U.S. Supreme Court decision that strikes down a California law banning the sale of violent video games to children. But some observers say that the pro-free speech ruling could have a counterintuitive result: it could give broadband providers a boost in their fight against network neutrality.

"Today's opinion may further strengthen the carriers' arguments that any nondiscrimination requirement imposed on them should be struck down," writes Cardozo Law School professor Susan Crawford, a prominent neutrality proponent. The key issue, says Crawford, centers on whether the Federal Communications Commission's neutrality rules are interpreted as "content-based." If so, then broadband providers can argue that the rules are invalid unless they meet the "strict scrutiny" standard -- meaning that they are as narrow as possible and further a compelling interest. Crawford adds that content-based rules are "always" struck down by the Supreme Court. The FCC's rules ban broadband providers from blocking or degrading Web sites or applications. But Crawford argues that the carriers will be able to argue those rules are impermissible because they require providers to transmit certain content. "Even though today's opinion is about regulations prohibiting speech rather than regulations requiring speech, it's likely that the carriers will be able to frame the debate their way: We'd like to speak, to use all of our pipes the way we want to, without restriction. By forcing us to fairly carry speech with which we don't want to be associated, you're restricting our free use of our private communications medium," she writes.