One of the major issues in the legal debates surrounding the Open Internet Order is whether the rules were a violation of the First Amendment’s protection of free speech. This was the argument of Alamo Broadband Inc. in the recent case. Just as newspaper publishers have the right to decide what transmit via print, so ISPs should have the right to decide what to transmit via their networks. The DC Circuit’s opinion disagrees, holding that ISPs are not entitled to First Amendment protection because they do not operate under space constraints that make editorial discretion a necessity for newspapers. Regardless of the wisdom or rationality of that finding, the realities of the Internet marketplace complicate the issue.
Some ISPs, such as DNet and JNet, offer editorial discretion as a service, filtering content that end users may not want to see often for moral or religious reasons. While such services are a small minority of all ISPs, that number could soon grow. In the Court’s opinion upholding the FCC’s increased regulation of the Internet, the majority follows its finding that the usual practice of providing access to the whole Internet is not protected speech by stating:
If a broadband provider nonetheless were to choose to exercise editorial discretion—for instance, by picking a limited set of websites to carry and offering that service as a curated internet experience—it might then qualify as a First Amendment speaker. But the Order itself excludes such providers from the rules.
So ISPs that don’t want to be subject to the new regulations have a clear option: they can simply block some subset of websites and be exempt. Thus, as Mercatus research fellow Brent Skorup has explained, the FCC’s attempt to create an open Internet has actually provided an incentive for ISPs to block and filter more than they would otherwise. Even if the Order’s ban on blocking is good for consumers, in other words, the only way to constitutionally justify the Order is to say that ISPs can block content if they want to and, thereby, escape the entire order.
The choices made by today’s Internet users and offered by ISPs demonstrate that consumers largely prefer access to the whole, unfiltered Internet—but the FCC’s attempt to protect consumers from hypothetical harms has altered the incentives facing ISPs such that consumers may face less desirable options for broadband service. The Open Internet Order, as upheld by the D.C. Circuit, increases the opportunity cost of not filtering because doing so removes them from the purview of the onerous FCC rules. The attempt to force ISPs to practice net neutrality has only encouraged them to flout such principles more than ever before.