D.C. Circuit Judges Debate Whether 1st Amendment Lets ISPs Block Digital Content

There will be no rehearing, but concurrences and dissents touch upon the future of net neutrality anyway.
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On Monday, the D.C. Circuit Court of Appeals announced it would not be rehearing its landmark opinion from June 2016 upholding the FCC's "open internet order," commonly known as the agency's net neutrality rules. Given that the FCC, under its new chairman Ajit Pai, is currently in the process of walking back the reclassification of broadband as a utility under Title II of the Telecommunications Act,  the development itself isn't surprising. However, the denial of a rehearing en banc gave several D.C. Circuit judges on Monday the opportunity to address some issues that could arise as net neutrality rules get an overhaul. One question in particular drew sharp elbows: Do ISPs have a First Amendment right to block or throttle content from the likes of Netflix, ESPN.com or Drudge Report

Once the FCC votes later this month on whether to adopt Pai's proposal, titled "Restoring Internet Freedom," new legal challenges may come. Pai has signaled that he would like broadband providers to voluntarily adopt net neutrality principles with perhaps some FTC enforcement if customers are lied to, but that might not be enough to assuage critics who worry that without Title II, the executive branch won't have much statutory authority to ensure that broadband providers like AT&T and Verizon treat internet traffic equally. If or when content providers start suing the FCC for again treating ISPs as an "information service" rather than a common carrier, attention will likely turn to a 2005 Supreme Court case, National Cable & Telecommunications Association v. Brand X Internet Services.

"The issue in Brand X was whether the Communications Act compelled the FCC to classify cable broadband ISPs as telecommunications providers subject to regulatory treatment as common carriers," write circuit judges Sri Srinivasan and David Tatel in a concurring opinion on Monday. "The Court answered that question no. Critically for our purposes, though, the Court made clear in its decision — over and over — that the Act left the matter to the agency’s discretion. In other words, the FCC could elect to treat broadband ISPs as common carriers (as it had done with DSL providers), but the agency did not have to do so."

The discussion comes up in the context of another D.C. Circuit judge — Janice Rogers Brown — who argues in dissent that the FCC overstepped its authority in the 2015 "open internet order," but it may just as easily provide cover for the FCC's newest rulemaking. In fact, upon Monday's decision not to rehear the case, Pai put out a statement noting that the opinion from Srinivasan and Tatel "makes clear that the FCC has the authority to classify broadband Internet access service as an information service, as I have proposed to do."

Nevertheless, other fights beckon. For instance, take the dissent from D.C. Circuit judge Brett Kavanaugh. 

Kavanaugh wanted a rehearing because he thinks the decision upholding the net neutrality rules was wrong for a separate reason. Specifically, he believes the FCC's rules are unconstitutional. He writes in a dissent, "The threshold question is whether the First Amendment applies to Internet service providers when they exercise editorial discretion and choose what content to carry and not to carry. The answer is yes."

According to Kavanaugh, when the framers of the U.S. Constitution adopted the First Amendment, they wished to protect the editorial discretion of newspapers and pamphleteers who published written communications to citizens. He sees the U.S. Supreme Court as applying those same foundational principles to modern analogs and keeping the FCC from overstepping its authority when dealing with the regulation of cable television.

"Here, of course, we deal with Internet service providers, not cable television operators," writes Kavanaugh. "But Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit. Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes."

He adds, "Absent a showing of market power, the Government must keep its hands off the editorial decisions of Internet service providers. Absent a showing of market power, the Government may not tell Internet service providers how to exercise their editorial discretion about what content to carry or favor any more than the Government can tell Amazon or Politics & Prose what books to promote; or tell The Washington Post or the Drudge Report what columns to carry; or tell ESPN or the NFL Network what games to show; or tell How Appealing or Bench Memos what articles to feature; or tell Twitter or YouTube what videos to post; or tell Facebook or Google what content to favor."

Whatever comes next from the government in the realm of net neutrality, Srinivasan and Tatel sees this opinion as a threat. Would Kavanaugh's conclusion go so far as to bar the FTC from ensuring ISPs don't stray from voluntary commitments not to throttle or block content? Srinivasan and Tatel seem to think so.

"Under that view, an ISP, for instance, could hold itself out to consumers as affording them neutral, indiscriminate access to all websites, but then, once they subscribe, materially degrade their ability to use Netflix for watching video — or even prevent their access to Netflix altogether — in an effort to steer customers to the ISP’s own competing video-streaming service," they write. "Alternatively, an ISP, again having held itself out as affording its customers an unfiltered conduit to internet content, could block them from accessing (or significantly delay their ability to load) the Wall Street Journal’s or the New York Times’s website because of a disagreement with the views expressed on one or the other site."

Srinivasan and Tatel emphasize, "An ISP has no First Amendment right to engage in those kinds of practices. No Supreme Court decision suggests otherwise ... The First Amendment does not give an ISP the right to present itself as affording a neutral, indiscriminate pathway but then conduct itself otherwise. The FCC’s Order requires ISPs to act in accordance with their customers’ legitimate expectations. Nothing in the First Amendment stands in the way of establishing such a requirement in the form of the net neutrality rule."

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