Here's a riddle for the digital age: What's black and white and read all over? According to Verizon, it's the internet. The company would like you to believe that, just like the New York Times, transmitting bits and bytes over the web is protected by the First Amendment.
The First Amendment protects freedom of speech, and of the press. According to Verizon, that means that an internet service provider can refuse to publish objectionable content or anything it disagrees with, just as a newspaper can.
In a lawsuit against the Federal Communications Commission filed in the U. S. Circuit Court of Appeals for the District of Columbia, Verizon argues that internet providers have “editorial discretion” just like newspapers, and “just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others” (Verizon v. FCC, case no. 11-1135). Verizon charges that the FCCs new "open internet" rules, implemented last Spring, take away the company's First Amendment right to control what websites it makes available to subscribers and the speed--sometimes fast, sometimes excruciatingly slow--at which these sites will load.
There are legal precedents granting First Amendment protection to some kinds of corporate speech—most recently the controversial decision in Citizens United, which concluded that money talks, literally, and turned the 2012 election into the most expensive on record.
But equating Verizon’s broadband service with the free press is a stretch, because, unlike money, the cables and microwaves that ISPs use to connect websites to customers are not speech in any sense, either literal or figurative. Accepting Verizon’s argument would be like saying that the molecules of air vibrating when we talk or the LEDs that form the images of words on our screens are not merely the transmitters of those words, but the very words themselves.
The goal of the FCC’s open internet rules is to preserve “net neutrality,” to guarantee internet users unfettered access to the web. The rules prevent ISPs from blocking “lawful content.” And they ban service providers from boosting connection speeds to favored sites or slowing access down to a crawl for disfavored ones.
But Verizon’s lawyers insist that these rules limit what the company can say, that they represent a constitutionally-impermissible abridgment of corporate speech. In their view, it would be like the government telling the Times the news that’s fit to print.
There’s a precedent for how to treat the lines of internet communication. In the early days of telephony, the phone company could refuse to carry conversations if it didn’t like what people were saying. Operators, who routinely listened in on calls for what today we euphemistically call “quality control,” could disconnect a caller for obscenity or profanity, or for otherwise violating the phone company’s rules—say, a business owner who let a customer make a call, something not permitted by the "terms of service." Repeat offenders lost their phone service. Lily Tomlin’s phone operator Ernestine could sit at her switchboard, unplug a circuit, and say “We just lost Peoria,” and viewers of Saturday Night Live laughed because, well, as recently as the 1960s callers seemed at the mercy of Ma Bell. As Ernestine put it when a customer complained, "We don't care. We don't have to. We're the Phone Company."
But today it’s clear in law, and in our culture, that phone lines must be neutral and open to any paying customer. They carry speech; they don’t regulate speech. The same applies to broadband and wireless internet. The FCC net neutrality rules don’t impact content, which is speech, but instead ensure the transmission of that content, which is not speech. The rules were carefully crafted after significant public comment, and they don’t prevent ISPs from editorializing on their website, creating any other sort of web content, accepting or rejecting advertising, or otherwise communicating corporate views to users. That remains protected speech. But the rules do warn ISPs that it is not permissible for them to block lawful web sites or to discriminate between content they favor and content they don’t. Which sites to visit, like, hate, or block, that should be the decision, and the right, of the internet user, not the service provider.
If there’s any connection between broadband and the free press, it’s that Verizon functions like the carriers who get paid to deliver the paper even if they don’t like what’s printed in it.
