Providing Internet access isn’t speech

[Commentary] Mere transmission of speech doesn’t implicate the First Amendment, for broadband providers or FedEx. A contrary argument means that Ma Bell, with the best lawyers money could buy, missed a winning constitutional argument against its telephone networks being treated as common carriers — they were transmitting speech! The DC Circuit was persuaded that, when broadband providers are simply transmitting, they are not speaking.

I obviously think the D.C. Circuit was right, but I want to emphasize the breadth of the counter-argument. If all transmission of bits is subject to heightened judicial scrutiny (as it would be under First Amendment jurisprudence), then judges would routinely invalidate regulation of a huge and growing range of activity in our increasingly digitized world. Arguments for and against purely economic regulation should be made on their own terms, not by invoking unmoored notions of what speech entails.

[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. He served as a consultant to the FCC in the net neutrality proceeding and worked on the order and its legal defense]