Libertarians make the case: network neutrality is unconstitutional

A group of well-known libertarian organizations has filed an amicus brief to the US Court of Appeals for the District of Columbia Circuit in support of the plaintiff in the Verizon v. Federal Communications Commission case. Verizon filed its own brief earlier this month.

In the brief, TechFreedom, The Competitive Enterprise Institute, The Free State Foundation, and the Cato Institute argue that the last year’s FCC network neutrality order, which took effect in November 2011, violates the First and Fifth Amendments, and that the FCC lacks jurisdictional authority to implement such a rule. Specifically, the groups say that compelling private companies to “speak,” by requiring them to carry all traffic across their networks, instead of allowing them to discriminate as they see fit, violates the principle of freedom of speech. “When you allow the government to say that a private operator has to treat all speech equally and cannot refuse to carry some speech—our view is the First Amendment jurisprudence [stipulates] that the government can’t compel a speaker,” said Free state’s Randolph May. Further, the groups argue, citing case law, the government must show immediate, real harm, rather than theoretical or possible harm.