Broadband providers as "speakers"
This post was prompted by draft paper sent to me by Moran Yemini, a student at NYU. Many apologies for not crediting him. Watch for his paper — it will be great.
What do you think of the First Amendment rights of broadband providers?
The providers may think they have what lawyers might call a “bootstrapping” argument:
1. Because there is no common carriage requirement for broadband access now
2. We network providers are speakers (look at our IPTV!)
3. And so you can't impose network neutrality on us without violating the First Amendment.
If network providers can successfully argue that they are actually “speakers” (like cable companies), then a network neutrality statute would have to survive “intermediate scrutiny” as a First Amendment matter. (For legal beagles: government would have a strong argument that network neutrality is content neutral, so “strict scrutiny” wouldn't be called for.)
To survive this scrutiny, the government imposing network neutrality would have to show that “the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”
In the cable context, the broadcasters were able to provide substantial evidence of harm — that, absent a “must carry” rule, broadcasters were realistically likely to be hurt.
Here, network neutrality proponents are (arguably) conjecturing about harm. And all the network providers have to do is hold on and not do anything too obvious. If a neutrality statute passes, they can say that it can't survive this “intermediate scrutiny” and that the statute is therefore unconstitutional.
Of course, because we have no data whatsoever about what happens inside these networks, we'll have trouble providing substantial evidence of harm.
In the long term (and if a neutrality statute passes) this will become an important battleground. It seems to me that making a huge fuss NOW about the lack of data is important. That might persuade a court later that it is
impossible to show actual harm and that conjecture is the best anyone can do (it was good enough for the broadcasters), using the van Schewick argument that these guys have every incentive to discriminate in ways that help them.
I bet the telcos think of themselves as speakers, just like cable providers — they're working on intertwingling their internet access with their IPTV, so that the whole thing will provide a First Amendment facade.
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