In Verizon v. FCC, high-speed Internet access provider Verizon asserted that the December 2010 Federal Communications Commission (FCC) Open Internet Rules were subject to heightened scrutiny under the First Amendment. Verizon’s claim was that because it reserves the right to edit what users access across its high-speed Internet connections, any regulation (and thus, necessarily, any statute) limiting that discretion amounts to compelled speech. (Verizon also claimed that it did not in fact carry out such editing.) The cable industry, for its part, has long maintained that when it is selling high-speed Internet access its activities are shielded by the First Amendment, and that any nondiscrimination obligation aimed at cable Internet access providers “would not only encroach upon but would obliterate the boundaries established by the First Amendment and would surely be subject to at least ‘heightened scrutiny’ by the courts.” Commentators working with think tanks such as the Free State Foundation have said that they agree with the idea that private providers of Internet access services should enjoy the same First Amendment protection from government oversight as do newspapers.
This commentary is surprising. Congress has for more than a hundred years had unquestioned authority to impose on private providers of general-purpose two-way communications lines a traditional, comprehensive, economic regulatory regime that protects innovation, speech, and national competitiveness by overseeing the activities of these providers, subject only to rational basis review by courts. When the FCC acts pursuant to this congressional authority, it must comply with the Administrative Procedure Act (APA) and applicable statutory language. But its regulatory activities in this arena have not in the past been thought to raise serious constitutional concerns under the First Amendment that would trigger heightened scrutiny.
This Article views the providers’ First Amendment arguments in a broad framework of political power. Verizon, speaking (effectively) for the entire high-speed Internet access sector, is seeking to grant greater influence to courts than legislators or regulators by raising constitutional questions about steps that Congress or the FCC may seek to take. From this perspective, aggressive First Amendment arguments that trigger judicial concern are useful to Verizon and its brethren in undermining traditional deference to regulators and legislators. But to apply a heightened First Amendment standard when a court is reviewing an ordinary economic regulatory program, merely because there may be some indirect effect on private speech caused by the challenged regulations, would return us to the Lochner era and sharply undermine congressional authority.
The risk is that a court will someday take the providers’ First Amendment position seriously. Today, the providers’ arguments would likely fail given the Court’s carefully reasoned (and unanimous) opinion in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR). But the providers’ assertions have an interesting temporal dimension: although it seems almost unthinkable that a general-purpose high-speed Internet access provider — selling services that are the modern-day substitute for a telephone connection — would be considered to be “the same as” the New York Times for speech purposes, the network providers have the incentive to change the facts on the ground. As providers of high-speed Internet access have gained market power in the absence of either competition or oversight, their abilities to selectively present digital communications to users and close their gates to content (or “edge”) providers unwilling to pay tribute to them have increased. In the future, their exercise of these powers may arguably make them more like newspapers or the cable pay-television operators found to trigger heightened scrutiny in Turner Broadcasting System, Inc. v. FCC (Turner I) and less like a communications transport network subject to economic regulation.
Because the consequences of the adoption of the providers’ arguments would be to make every congressional enactment in this area subject to a presumption of unconstitutionality, and to strip the FCC of the deference to which it is normally entitled, this is a critical time for courts and others to carefully and deliberately explain why the carriers are wrong. For though the D.C. Circuit declined to address Verizon’s First Amendment claims in Verizon, the providers of high-speed Internet access in America will continue to make these assertions in every possible case and before Congress, repeating their claimed entitlement to heightened scrutiny until it becomes a mainstream argument. On this battlefield, and given that legislators are now suggesting that a rewrite of the Telecommunications Act of 1996 is needed, the particular administrative classification the FCC has applied to the providers of high-speed Internet access is irrelevant, both now and in the future. The sole question is whether the providers’ constitutional claims should be taken seriously. This Article endeavors to provide a roadmap for the needed explanation as to why they should not be, by engaging with the doctrinal, policy, and normative dimensions of the providers’ assertions.