ISPs’ Rights to Free Speech Debated About Net Neutrality
Whether ISPs have free-speech rights was debated late Thursday at an FCBA continuing education panel on net neutrality. Opponents of the FCC’s December net neutrality order, which they noted hasn’t taken effect because it hasn’t been published in the Federal Register, focused on the rights of cable operators, telcos and other network operators. Rule proponents said they see net neutrality rules as protecting the rights of broadband subscribers to free speech.
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The rules “suggest” that an ISP “might have to throttle back its own speech” to preserve network capacity for content produced by others, said Rosemary Harold, aide to Commissioner Robert McDowell. McDowell and Commissioner Meredith Baker voted against the order. Comparing the context of net neutrality to the application of the First Amendment to newspapers, that a paper doesn’t usually reject ads doesn’t prevent it from doing so and exercising its free-speech rights, Harold said.
There’s a long precedent of government activity in promoting the rights of speakers, as Internet users can be seen, said net neutrality proponent Parul Desai, Consumers Union policy counsel. “Is it the rights of Internet users, or is it the rights of ISPs,” when it comes to net neutrality, she asked. “I see it as the rights of Internet users, who can use the Internet in a way that they can’t use any other medium. To me this is a light-touch way of ensuring” people can exercise those rights, Desai added. “The Internet has become so valuable because of what everyone is able to put on and access,” and ISPs are private companies using public rights of way, she noted: “So that complicates the analysis a little bit more."
Free State Foundation President Randolph May asked if “ISPs” also “have speaker rights.” He said those network operators build systems, using “private capital, and there are capacity limitations on these networks.” Network owners can “expand the capacity,” but at some point “that runs up against their own desire to use that capacity to present their own programming,” said May, who opposes the net neutrality rules.
The broadband subscriber, not the ISP, decides what web page to visit, and then uses the content on it, said Policy Counsel Aparna Sridhar of Free Press, which backs net neutrality regulation. “Net neutrality regulates conduct and not speech,” she said of broadband service. “Viewers and consumers of that service understand that they're purchasing content and perceive that service as content,” Sridhar said. “On the other hand, it’s quite clear that when you're buying Internet service, what you're buying is access to the pipe. That’s why this” affects “economic transactions, not speech,” she added.
Helping others exercise their speech doesn’t rule out being able to “make filtering choices and block things without fear of tort liability,” cable lawyer Matt Brill of Latham & Watkins said of broadband service providers. “ISPs can function as editors -- they have no duty to -- but when they do, the whole point of that statute is when they do, they don’t give up their rights.” ISPs are both speakers and editors, “and the degree to which they chose to intervene is a choice,” Brill said. “But that choice is one that is protected by the First Amendment.”