Mr. Campbell is executive director of the Center for Boundless Innovation in Technology and a former chief of the FCC’s wireless bureau.
Is watching Netflix on the broadband Internet more like (A) watching cable television or (B) talking on the telephone? Common sense suggests the answer is “A,” and the court that overturned the previous open Internet rules chose “A”; the First Amendment demands it. The Federal Communications Commission (FCC) nevertheless chose “B.”
In the 2015 Open Internet Order, the FCC concluded the Internet is the functional equivalent of the public switched telephone network and is subject to the common carrier regulations in Title II of the Communications Act of 1934. If it had admitted the Internet offers communications capabilities that are functionally equivalent to the printing press, mail carriage, newspaper publishing, over-the-air broadcasting, and cable television combined, it would have been too obvious that its decision to classify broadband Internet service providers (ISPs) as common carriers is unconstitutional. Like all other means of disseminating mass communications, broadband Internet access is a part of the press that the First Amendment protects from common carriage regulation.
The Supreme Court has upheld only government intrusions on the freedom of the press that were limited in scope and justified by detailed factual findings of scarcity or express agreement. For example, in Red Lion, the Court ruled that a scarcity of available broadcast frequencies was enough to justify a relatively limited intrusion on the editorial discretion of over-the-air broadcasters, and in Turner I, it ruled that a Congressional finding of monopoly market power was enough to justify the imposition of access rights on up to one-third of the capacity of large cable networks.
The unprecedented restrictions imposed by the open Internet rules eviscerate the freedom of the press without regard to scarcity. In the Open Internet Order, the FCC expressly disclaimed any intent to find that ISPs have market power. It instead attempts to justify a total ban on the editorial discretion of ISPs based on the ideology of “gatekeeper control.” This ideology presumes that all content providers who wish to use a particular system for disseminating mass communications require a government-mandated right of free access to all other users of such systems at all times in order to survive, innovate, and compete. Its corollary presumption is that the operators of mass media communications systems have no recognizable interest, constitutional or otherwise, in exercising editorial discretion.
No matter how appealing this ideology is to the FCC, there is little to no chance that its open Internet rules will withstand First Amendment scrutiny on this basis. Government attempts to impose total bans on free expression are presumptively invalid, and “gatekeeper” status is not enough to overcome this presumption. The ability to exercise gatekeeper control is a common feature of all mass communications systems. Cable operators, broadcasters, and newspapers have gatekeeper control over their audiences as well, yet the Supreme Court has repeatedly affirmed that these media have a constitutional right to discriminate against the speech of others. The FCC’s claim that an ISP’s status as a gatekeeper is a “special circumstance” warranting a total ban on editorial discretion is inconsistent with this precedent. If the FCC were upheld, the same reasoning would justify government-mandated rights of access and corresponding bans on the editorial discretion of cable operators, broadcasters, and newspapers.
There is no merit to the FCC’s attempt to bolster its First Amendment case by declaring that ISPs are not entitled to freedom of expression in the first place. The FCC does not deny that ISPs disseminate mass communications, including newspaper print and video programming, or that ISPs have the technical ability to exercise editorial discretion. It instead claims that, if the operator of a system for disseminating mass communications does not exercise a sufficient degree of editorial discretion for a sufficient period of time, the operator forfeits its First Amendment rights in perpetuity and can be forced into becoming a conduit for the speech of others. This “editorial quality” theory presumes the press is entitled to First Amendment protection only if it consistently exercises editorial discretion of sufficiently high quality, as determined by the government.
Like the ideology of gatekeeper control, the editorial quality theory of the First Amendment is inconsistent with Supreme Court precedent. The application of the First Amendment to particular types of communications systems has never turned on the perceived quality of the editorial function that their operators choose to offer. Well over a century ago, the Supreme Court drew the relevant constitutional distinction between communications systems that disseminate information to the masses (e.g., the printing press and the Internet) and those that provide private, point-to-point communications between individuals (e.g., telegraphy and telephony). A wholesale printer has as much right to the freedom of the press as the New York Times, because printers publish mass communications. Though it has traditionally involved little curation of content, the carriage of newspapers through the mail is also protected by the First Amendment, because the freedom of the press to publish would have little meaning if the government could restrict the freedom to circulate publications. The First Amendment freedoms to publish and circulate are applicable to the Internet for the same reasons.
The FCC’s attempt to equate the Internet with the public switched telephone network as a matter of statutory interpretation does not alter the First Amendment analysis. The application of common carrier regulation to telegraphy and telephony was not based on the editorial quality theory. Tele-services were subject to non-discrimination obligations because they were physically incapable of disseminating the types of mass communications that are protected by the Press Clause. Only the operators of systems that disseminate “public” mass communications (e.g., newspapers) have a constitutional right to discriminate against the speech of others through the exercise of editorial discretion, and neither telegraphy nor telephony could deliver newspaper print or video programming directly to the people in a manner similar to mail carriage, over-the-air broadcasting, or cable television.
This distinction is embedded in the language of the First Amendment itself and fully reflects its values. The First Amendment prohibits Congress from abridging either “the freedom of speech” (the Speech Clause) or the freedom “of the press” (the Press Clause). The purpose of the Press Clause is to protect the conduct of owning or operating a means of disseminating mass communications from government interference. The Constitution expressly includes this freedom in a separate clause because governments had historically censored speech by controlling the physical machinery used for mass communications. For example, under English law, mere ownership or possession of an unlicensed printing press was once a crime. The Constitution reflects the people’s determination that whatever risks attend private control over the means of mass communications are preferable to the risks of governmental control.
The FCC’s First Amendment rationale eviscerates this determination by inviting the government to once again censor speech by controlling the means of its dissemination to the masses. Declaring that ISPs have no First Amendment right to exercise editorial discretion has the effect of giving the government power to censor the entire Internet. It is a settled principle that no person has a constitutional right to access a mass communications system owned or operated by another person or the government. This principle indicates that, to the extent end users have a constitutional right to challenge government regulation of ISP transmissions, their rights are derived from those possessed by the ISPs themselves. As a result, if ISPs have no right to challenge a regulation that prohibits them from transmitting a particular viewpoint, content providers and consumers have no right to challenge the regulation either. Under the FCC’s rationale in the Open Internet Order, no one has standing to challenge government censorship of ISP transmissions.
To avoid this anomalous result, a reviewing court would be required to overturn or ignore Supreme Court precedent holding that there is no constitutional right to access mass media communications. That would make the Open Internet Order a landmark First Amendment case that would be almost certain to garner Supreme Court review. Given the strong preference of lower courts for following Supreme Court precedent when deciding constitutional issues, the FCC is is very likely to lose on First Amendment grounds in an initial appeal of the Open Internet Order.