Yesterday’s 108-page majority opinion upholding the Federal Communications Commission’s net neutrality rules devotes less than 10 pages to the First Amendment challenge.  Judges Tatel and Srinivasan held, in validating the FCC’s net neutrality rules, that prohibiting Internet Service Providers from prioritizing certain Internet traffic does not violate the First Amendment.  This limited First Amendment analysis is fitting.  Companies like Time Warner do not make editorial judgments when providing Internet services and thus are not First Amendment speakers.  However, the D.C. Circuit’s opinion has implications for other First Amendment interests – like Google’s right to control its algorithm or an agency’s power to revoke a communications provider’s free speech rights.  The D.C. Circuit should have written its opinion more carefully so as to better protect and clarify First Amendment interests for future cases.

The question of whether net neutrality will ultimately facilitate or stifle innovation is a hotly debated issue.  However, once the FCC decided this issue, mandating an “open Internet,” the D.C. Circuit must apply the deferential “arbitrary and capricious” review to agency decisionmaking.  Under this standard of review, even if the FCC’s mandate that ISPs treat all Internet traffic the same is ultimately bad policy (as Judge Williams in dissent believes, in addition to concluding that the FCC was without power to reclassify ISPs as “telecommunications carriers”), courts must defer to agency expertise.  Courts must uphold an agency action so long as it is based on a reasoned consideration of the factual record.

The majority opinion thus upheld the FCC’s reclassification of broadband Internet Services as “telecommunications services.”  This reclassification gives the FCC the authority to impose net neutrality rules on ISPs.  Although ISPs were formerly subject to fewer regulations as providers of “information services,” companies like Comcast are now subject to the same common carrier rules that require telephone companies to treat all telephone traffic equally.  When connecting one’s home computer or mobile device with content providers like Netflix or ESPN.com, an ISP like AT&T is now forbidden from charging content providers variable rates to speed up traffic coming from Netflix or slow down traffic coming from The New York Times.

Agencies like the FCC are entitled, so long as they properly exercise authority granted to them by statute, to decide whether governmental intervention is ultimately beneficial or detrimental to growth in a particular area.  This agnosticism towards big or small government does not extend to the First Amendment.  Generally, the government cannot stifle some speech to facilitate more speech; the First Amendment reflects a default prohibition against government censorship or abridgment of speech, no matter the ultimate distribution of speech.  The reason the FCC can deny ISPs the ability to prioritize some Internet traffic (composed of speech) over others, therefore, is because ISPs are not, in essence, speaking when they direct Internet traffic.  According to the D.C. Circuit, unlike a newspaper, which has a First Amendment right to publish some articles over others, ISPs do not exercise judgment or discretion related to the content of speech when connecting an end user to particular Internet content.

This is correct: the way in which ISPs conduct Internet traffic should not trigger any First Amendment scrutiny.  Further, the D.C. Circuit noted that if a particular ISP was not holding itself out as a common carrier but was explicit about limiting/curating access to particular realms of the Internet, then it would not be subject to the FCC’s nondiscrimination and equal access obligations.  However, some aspects of the D.C. Circuit’s analysis are concerning for future First Amendment cases involving the Internet.

For one, the opinion seems to rely heavily on the FCC’s legitimate exercise of authority to classify ISPs as common carriers, whose transmission of speech does not raise First Amendment scrutiny.  This rationale would give an agency or the legislature wide latitude to determine whether or not a particular company enjoys First Amendment protections.  Thus, although broadcasters like CBS are currently not subject to common carrier classifications and thus may use some discretion in prioritizing some content over others, the opinion seems to imply that a reclassification by the FCC (if statutorily permissible under the Communications Act of 1996) could turn broadcasters into common carriers.  Whether an entity that transmits speech should be treated like a common carrier should not be subject to an agency determination; courts should highly scrutinize First Amendment challenges using far more than arbitrary and capricious review.  The problem is that currently, the Communications Act exempts those who exercise editorial judgment from common carrier obligations, rendering the analysis circular, but Congress could change this exemption.

Further, the court of appeals’ focus on consumer expectations may have implications for companies like Google and Facebook, who should be considered private speakers entitled to their own First Amendment rights.  The majority opinion notes several times that consumers expect ISPs to provide equal access to all websites.  This, in some ways, mirrors the arguments made in the investigation into Facebook’s “Trending Topics” section.  Simply because users expect that Facebook selects these topics neutrally does not mean Facebook does not have a free speech right to curate its own selections for trending news items.  Similarly, I would hope and expect that Google chooses its algorithm in a neutral way when it generates search results.  However, courts have rightly held that Google has constitutionally protected interests in defining its own algorithm.

Now, the D.C. Circuit may simply be stating the position that because broadband providers “hold themselves out as neutral, indiscriminate conduits,” they cannot now claim they want to exercise editorial discretion and free speech rights.  As a matter of consumer protection, this may be correct, but that rationale raises some concerns as a First Amendment standard, especially in relation to Facebook or Google.  Ultimately, ISPs that provide mass-market access to the Internet have never defined themselves with reference to the content they provide or shown any interest in exercising editorial judgment, so applying common carrier transmission rules here seems obviously permissible as a matter of First Amendment law.  But legislatures and executive agencies should tread lightly in this area, vigilant of free speech interests, and courts should shy away  from overbroad rationales.  The government’s former laissez-faire approach to the Internet, dismantled by net neutrality, had allowed for the democratization of speech in unprecedented, marvelous, terrifying, and beautiful ways.