December 3, 2015

Net Neutrality’s Threat to Free Speech

Brent Skorup

Senior Research Fellow
Summary

The FCC’s attempt to use Title II, its most intrusive regulatory weapon, to regulate the Internet shows agency disdain for the law, for free markets, and for free speech. Americans should hope the Court of Appeals will deny this regulatory overreach and strike down, for a third time, the FCC’s attempts to turn ISPs into common carriers.

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Several parties will appear before the DC Circuit Court of Appeals tomorrow for oral arguments regarding the legality of the Federal Communications Commission’s 2015 Open Internet Order, which contains Title II regulations—the so-called net neutrality rules. Broadband Internet is the modern-day printing press, with Internet service providers and Internet-based companies creating and distributing mass media. By voting itself authority to regulate the Internet, the FCC’s rules pose a significant threat to free speech and the future of media.

Oral arguments may focus on the administrative law issues but at least one party, a small Internet service provider, will argue that the Order violates the First Amendment rights of ISPs. Most ISPs, at the urging of Congress, offer filtering services to give parents more control over what their children can access online. Some ISPs also filter out adult content and remove other offensive content for religious or discerning families. The vague Open Internet rules mean these services and new Internet services risk being declared illegal depending on the whims of the Commission.

Congress passed a 1996 law stating that the Internet should remain “unfettered by Federal or State regulation.” They foresaw that traditional media—like newspapers, radio, television—and new online services—like gaming, Internet of Things, social media—would be delivered via Internet and Congress desired to protect the Internet’s development from regulators’ meddling. The FCC’s attempt to use Title II, its most intrusive regulatory weapon, to regulate the Internet shows agency disdain for the law, for free markets, and for free speech. Americans should hope the Court of Appeals will deny this regulatory overreach and strike down, for a third time, the FCC’s attempts to turn ISPs into common carriers.