First Ammendment Argument Against Net Neutrality (Part 4 in a multi-part series)

ISPs (and their lawyers) will also argue against net neutrality on two constitutional grounds (either of these arguments is stronger than the business argument). ISPs argue that net neutrality violates both their 1^st and 5^th amendment rights. Interestingly there is precedence within existing case law to support each of these arguments. In this post I will examine only the 1st Amendment argument.

An illustrative example of net neutrality legislation is the bill put forth by Senator Byron Dorgan entitled “The Internet Freedom Preservation ActThe act, introduced in the second session of the 109th Congress reads, in part,

"Each broadband service provider shall (1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet” (Internet Freedom Preservation Act, S.2917 12(a)(1)(2006), 2006).

ISPs argue that net neutrality, specifically the provision that requires them to treat all traffic equally, violates their rights under the 1^st amendment. The entire premise of net neutrality (both as a concept and as legislation) is that the Internet should be open and non-discriminatory. This noble goal, in practice, will require that ISPs (generally private companies), therefore, behave in a non-discriminatory manner. Taking this concept a step further, and we arrive at the logical conclusion that ISPs must treat the traffic of a competitor the same way they treat their own traffic. ISPs argue that compelling them to deliver a message is as much as a violation of their 1st Amendment rights as prevent them from speaking would be. In the past the courts have agreed. In Pacific Gas and Electric Company vs Public Utilities Commission the court held that ““For corporations as for individuals, the choice to speak includes within it the choice of what not to say.”

Many IPSs and conservative think tanks have latched on to this argument as to why net neutrality legislation should be defeated.  In the next post we'll look at another constitutional argument against net neutrality.

Good Talk,
Tom