With yet another net-neutrality order set to take effect (the link is to the draft version circulated before today’s Federal Communications Commission vote; the final version is expected to be published in a few weeks) and to impose common-carriage requirements on broadband internet-access service (BIAS) providers, it is worth considering how the question of whether online platforms (whether they be social media or internet service providers) have the right to editorial discretion keeps shifting.
The official position of the FCC (and the Biden administration, more broadly) is that the more an online platform engages in content curation, the greater their First Amendment interest. Paradoxically, this means that the more that an online platform engages in editorial discretion (and holds itself out as doing so), the less the government can do to regulate them.
Below, I’ll sketch what the new net-neutrality order argues about ISPs’ First Amendment interests, and compare those arguments to the ones the Biden administration made (in this case, regarding social media) before the U.S. Supreme Court in the NetChoice cases. Ultimately, I argue that the First Amendment should protect the editorial discretion of both ISPs and social-media companies, regardless of their particular level of moderation. Online platforms acting in the market process are better positioned to serve their user’s speech interests than are regulators.
The New Net Neutrality Order
After spending significant time denying that ISPs—or, as the order calls them, “BIAS providers”—have any editorial-discretion rights as conduits of the speech of others, the FCC then does a complete about-face when considering whether ISPs would be subject to the order if they were explicit about curating content:
- To be sure, a different question would be presented if a BIAS provider were to create and market a curated Internet access product that caters to some target audience and is clearly presented as such to consumers. The rules we adopt today apply only to offerings of mass-market broadband service providing indiscriminate access to all or substantially all Internet endpoints, which consumers understand to transparently transmit information to and from the Internet applications and services of their choosing without being curated or edited by their BIAS provider. A curated Internet product, if clearly identified and marketed as such, would fall outside the scope of this Order. And if a BIAS provider “represent[s] itself to consumers as affording them less of a ‘go wherever you’d like to go’ service and more of a ‘go where we’d like you to go’ service,” that might well be an expressive offering receiving First Amendment protection. A BIAS provider that wishes to provide such a curated service may freely do so, so long as the BIAS provider “make[s] adequately clear its intention to provide edited services of that kind, so as to avoid giving customers a mistaken impression that they would enjoy indiscriminate access to all content available on the internet[] without the editorial intervention of their broadband provider.”
- If a BIAS provider decides to offer a service that is clearly identified as providing edited or curated Internet access, consumers would be free to decide whether to subscribe to that curated offering based on its expressed editorial policies or viewpoint. But what BIAS providers may not do is provide consumers what purports to be ordinary mass-market broadband service, which consumers reasonably understand to provide indiscriminate access to all or substantially all Internet applications and services of their choosing, and then engage in discriminatory practices that deny customers the service they reasonably expect. Our rules thus simply ensure that BIAS providers “act in accordance with their customers’ legitimate expectations.”
The order’s argument can only be understood in light of previous litigation over the question in front of the U.S. Court of Appeals for the D.C. Circuit. There, in the USTelecom opinion, concurring in the denial of rehearing by Judge Sri Srinivasan, the court found that the 2015 Open Internet Order was constitutional under the First Amendment, because it was only aimed at ISPs that hold themselves out as a “neutral, indiscriminate pathway” and not to those “making [it] sufficiently clear to potential customers that it provides a filtered service involving the ISP’s exercise of ‘editorial discretion.’”
In other words, if ISPs simply stated upfront that they do, in fact, engage in blocking of content and would not connect users to certain sites or apps, then they would not be subject to the no-blocking rules of the net-neutrality order. Paradoxically, if courts accept this argument, ISPs may be in a better position to explicitly block content, which is supposedly the sine qua non of what net neutrality is supposed to prevent.
NetChoice Oral Arguments
In NetChoice v. Paxton, U.S. Solicitor General Elizabeth Prelogar argued that a Texas law violated social-media platforms’ rights to editorial discretion. But in response to a question from Justice Elena Kagan about distinguishing this case from net neutrality, Prelogar said:
Internet service providers are fundamentally different because they are engaged in transmitting data in order to make websites accessible, and that is not inherently expressive…
Now then you might ask, okay, well, what if they want to start discriminating with respect to the service they’re providing for particular types of websites? The kind of quintessential example of this is an Internet service provider that decides to slow down service to a streaming site, let’s say Netflix, because it wants to direct Internet traffic to some other website of its own choosing, maybe its own streaming service. We think net neutrality could come in there and — and say you’re not allowed to discriminate based on content in that way, but that’s because, again, there would be no expressive speech or — or compilation that you could attribute to the Internet service provider itself.
People don’t sign up with Comcast or Verizon to give them some kind of limited, curated access to the Internet. They’re engaging in service with those companies because they need someone physically to transmit the data so they can get access to the whole Internet.
Justice Brett Kavanaugh elicited laughs when he asked if he had to “buy anything you just said on net neutrality” in order to rule in favor of the social-media companies. Prelogar said no, concluding that “platforms are engaging in expressive activity… protected by the First Amendment. And you can leave for another day all of the kind of conduit questions that come up in the net neutrality context.”
What this leaves open, however, is how the FCC or a court would rule if an ISP did choose to offer customers a curated internet experience. Presumably, this would make them—in the Biden administration’s view—more similar to social-media companies, and no longer mere conduits. In such a situation, the government’s hands would be tied, according to the administration’s prevailing theory. But this would necessarily mean more blocking, not the nearly nonexistent amount of blocking that currently exists.
A Better Way Forward: Let the Market Decide
Instead of basing the extent of ISPs’ First Amendment rights on how much content they block, a better approach would be to allow ISPs to test various models in the marketplace. There is no reason to believe regulators are in a better position to decide the optimal amount of ISP “blocking,” any more than there is for social-media companies. As private companies that compete for business, ISPs must offer a product that their users want. Right now, the prevailing consumer preference appears to be access to almost all endpoints.
But it isn’t difficult to imagine a situation where ISPs could offer a curated product that some consumers may prefer. For instance, some consumers may want a cheaper product, even if it means less access to online content—particularly if it’s content that holds no interest to them. There could also be demand for “family-friendly” ISPs that don’t offer any access to, e.g., online pornography or particular social-media sites believed to be harmful to children. An ISP could even design its service to block some unpopular content by default and/or allow users to tweak settings of what is unavailable. The curation possibilities are endless.
The right to editorial discretion means that ISPs should be able to choose what to offer their users, while letting the market process decide who wins. This could mean access to all legal (or perhaps even a lot of illegal) content. Or it could mean ISP-level filters in response to consumer demand. But there is no economic or legal logic to the argument that ISPs must block more content in order to enjoy First Amendment protection. As then-Judge Kavanaugh put it in his USTelecom dissent:
The FCC’s “use it or lose it” theory of First Amendment rights finds no support in the Constitution or precedent. The FCC’s theory is circular, in essence saying: “They have no First Amendment rights because they have not been regularly exercising any First Amendment rights and therefore they have no First Amendment rights.” It may be true that some, many, or even most Internet service providers have chosen not to exercise much editorial discretion, and instead have decided to allow most or all Internet content to be transmitted on an equal basis. But that “carry all comers” decision itself is an exercise of editorial discretion. Moreover, the fact that the Internet service providers have not been aggressively exercising their editorial discretion does not mean that they have no right to exercise their editorial discretion. That would be akin to arguing that people lose the right to vote if they sit out a few elections. Or citizens lose the right to protest if they have not protested before. Or a bookstore loses the right to display its favored books if it has not done so recently. That is not how constitutional rights work. The FCC’s “use it or lose it” theory is wholly foreign to the First Amendment…
Relatedly, the FCC claims that, under the net neutrality rule, an Internet service provider supposedly may opt out of the rule by choosing to carry only some Internet content. But even under the FCC’s description of the rule, an Internet service provider that chooses to carry most or all content still is not allowed to favor some content over other content when it comes to price, speed, and availability. That half-baked regulatory approach is just as foreign to the First Amendment. If a bookstore (or Amazon) decides to carry all books, may the Government then force the bookstore (or Amazon) to feature and promote all books in the same manner? If a newsstand carries all newspapers, may the Government force the newsstand to display all newspapers in the same way? May the Government force the newsstand to price them all equally? Of course not. There is no such theory of the First Amendment. Here, either Internet service providers have a right to exercise editorial discretion, or they do not. If they have a right to exercise editorial discretion, the choice of whether and how to exercise that editorial discretion is up to them, not up to the Government.
Think about what the FCC is saying: Under the rule, you supposedly can exercise your editorial discretion to refuse to carry some Internet content. But if you choose to carry most or all Internet content, you cannot exercise your editorial discretion to favor some content over other content. What First Amendment case or principle supports that theory? Crickets.
If the net-neutrality order is simply about making sure there are no fraudulent representations regarding what ISPs are offering, then it would seem quite burdensome and unnecessary, when contract law would suffice. But at least it would be doing something consistent with the First Amendment.
A better way forward that is both consistent with the First Amendment and consumer welfare is to let the market process decide.
