Choosing which cable channels to provide is speech, but offering Internet access is not

[Commentary] May 1, the DC Circuit denied the petition for rehearing en banc challenging the soon-to-be replaced network neutrality rules. Judges Brown and Kavanaugh dissented from the denial of rehearing, and each wrote to explain why. Brown and Kavanaugh both argued that Chevron deference doesn’t apply, but it’s Kavanaugh’s second argument that I want to focus on: that net neutrality regulations implicate the First Amendment.

Kavanaugh relies on Turner Broadcasting System, Inc. v. FCC. The key was that cable programmers and operators “engage in and transmit speech” — mere transmission wasn’t enough. What cable operators speakers was their own programming and their practice of “exercising editorial discretion,” entailing their “‘see[king] to communicate messages.'” Kavanaugh sees Internet service providers as analogous to cable operators.

[Stuart Benjamin is the Douglas B. Maggs Professor of Law, Associate Dean for Research, and co-director of the Center for Innovation Policy at Duke Law School.]