First Amendment Common Sense

Abstract

Providers of high-speed Internet access, including Verizon and the cable industry, are arguing that limitations on their activities raise serious constitutional concerns under the First Amendment that should trigger heightened scrutiny. The providers, however, are selling the modern-day version of general-purpose two-way telephone services, economic regulation of which has never been thought in the past to raise constitutional concerns. Today, the providers' arguments would likely fail given the Court's carefully-reasoned (and unanimous) opinion in  Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006).  But given the absence of either competition or oversight in this market, providers are poised to have the market power to “edit” digital communications seen by users and to force interconnecting networks and content providers to pay tribute, thus becoming more "like" The New York Times for speech purposes. Because of this temporal element of the providers’ claims, and because the consequences of the adoption of the providers' arguments would be to make every Congressional enactment in this area subject to a presumption of unconstitutionality (and to strip the F.C.C. of the deference to which it is normally entitled), this is a critical time for courts to carefully and deliberately explain why the carriers are wrong. This article provides a roadmap for this explanation.