In Net Neutrality Debate, “Free Speech” Has Always Been a Red Herring

Republican FCC Commissioners Miss the Point

Even before the FCC has released draft net neutrality rules, Republican Commissioners Brendan Carr and Nathan Simington each released statements blasting the Democratic leadership for, mainly, doing the bidding of Big Tech: “those companies and activists,” Simington says, “are now among the most notorious practitioners of censorship and opponents of free speech.” “Because Title II regulations apply only to Big Tech’s competitors,” Carr claims—referring to ISPs as if they somehow compete with social media—they “distract regulators’ attention from actual problems, and leave Big Tech companies free to continue operating in a biased and non-neutral manner.”

Carr and Simington offer a mirror image of the far left. Since 2008, progressive activists have breathlessly asserted that Title II was vital to protect free speech online from ISPs. As Carr and Simington rightly note, Title II was only in place for roughly two of the last fifteen years, and somehow, ISPs haven’t censored speech. But instead of probing more deeply into why, Carr and Simington pivot to their own equally breathless claims about “Big Tech censorship.” What they really want is to fight about “censorship” (actually, content moderation by social media sites), which Simington mentions nine times in two pages.

So eager are they to condemn the left for hypocrisy and to denounce its censorship (of conservatives, supposedly), they both miss the critical legal detail: Beyond requiring transparency, Title II simply wouldn’t have done anything to stop ISPs from censoring content. To the contrary, Simington repeats the common assumption that net neutrality rules somehow protect free speech “None of which is to say that the now-sidelined free speech concerns about ISPs are baseless,” he says. “ISPs in other Western countries do now engage in censorship and, given the ubiquity of such bad behavior in other segments of the digital ecosystem, it is possible that ISPs in the US would have already gone down that path but for fear of provoking the FCC to reimpose net neutrality rules.” 

Nope. “Free speech” is, and always has been, a red herring in this debate. The reason lies in the 2015 Open Internet Order’s definition of “broadband internet access service” as a “mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints … .” When the Order was challenged in court, Brett Kavanaugh, then a D.C. Circuit judge, penned a lengthy dissent in U.S. Telecom Ass'n v. Fed. Commc'ns Comm'n, 855 F.3d 381 (D.C. Cir. 2017) (USTelecom II), arguing it violated the First Amendment. Upholding the FCC’s rules, Judges Sri Srinivasan and David Tatel responded: 

In particular, “[b]roadband providers” subject to the rule “represent that their services allow Internet end users to access all or substantially all content on the Internet, without alteration, blocking, or editorial intervention.” [2015 Order] ¶ 549 (emphasis added). Customers, “in turn, expect that they can obtain access to all content available on the Internet, without the editorial intervention of their broadband provide.” Id. (emphasis added). Therefore, as the panel decision held and the agency has confirmed, the net neutrality rule applies only to “those broadband providers that hold themselves out as neutral, indiscriminate conduits” to any internet content of a subscriber's own choosing. U.S. Telecom Ass'n, 825 F.3d at 743… The upshot of the FCC's Order therefore is to “fulfill the reasonable expectations of a customer who signs up for a broadband service that promises access to all of the lawful Internet” without editorial intervention. Id. ¶¶ 17, 549.” U.S. Telecom Ass'n v. Fed. Commc'ns Comm'n, 855 F.3d 381, 389 (D.C. Cir. 2017

This is why the offerings of social media and ISPs are fundamentally different: Social media operators discriminate, block and “throttle”; that’s inherent in offering a curated service and it’s clear from all their community standards. Comcast, when it sells you broadband service, proclaims: We do not block, slow down or discriminate against lawful content (essentially accepting the FCC’s net neutrality rules—but not, of course, Title II). US Telecom II makes clear that, if it wanted to, Comcast could offer an edited, curated service — and, in so doing, would remove itself from the scope of the FCC’s “Open Internet” rules because it would no longer qualify as a “BIAS” provider: 

While the net neutrality rule applies to those ISPs that hold themselves out as neutral, indiscriminate conduits to internet content, the converse is also true: the rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathway—i.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISP's exercise of “editorial intervention.” [2015 Order] ¶ 549. For instance, Alamo Broadband, the lone broadband provider that raises a First Amendment challenge to the rule, posits the example of an ISP wishing to provide access solely to “family friendly websites.” Alamo Pet. Reh'g 5. Such an ISP, as long as it represents itself as engaging in editorial intervention of that kind, would fall outside the rule. … The Order thus specifies that an ISP remains “free to offer ‘edited’ services” without becoming subject to the rule's requirements. [2015] Order ¶ 556. 

That would be true of an ISP that offers subscribers a curated experience by blocking websites lying beyond a specified field of content (e.g., family friendly websites). It would also be true of an ISP that engages in other forms of editorial intervention, such as throttling of certain applications chosen by the ISP, or filtering of content into fast (and slow) lanes based on the ISP's commercial interests. An ISP would need to make adequately clear its intention to provide “edited services” of that kind, id. ¶ 556, so as to avoid giving consumers a mistaken impression that they would enjoy indiscriminate “access to all content available on the Internet, without the editorial intervention of their broadband provider,” id. ¶ 549. It would not be enough under the Order, for instance, for “consumer permission” to be “buried in a service plan—the threats of consumer deception and confusion are simply too great.” Id. ¶ 19; see id. ¶ 129.

All of this analysis turned on the wording of the definition of “broadband internet access service”—the thing covered by the net neutrality rules. But the FCC crafted that definition back in 2010 precisely to avoid triggering the First Amendment.

That might explain why Carr and Simington don’t want to talk about this: it undercuts their own arguments for “doing something” about Big Tech censorship. The “net neutrality” rules were constitutional because ISPs could always opt-out and exercise their free speech rights to offer a curated service. But, of course, what Carr and Simington are complaining about when they talk about “Big Tech” bias is exactly that: the curated social media sites offered by those companies. The last thing they want is to concede that the First Amendment protects such curation—what they call “censorship.”