First Amendment Scholars Support Network Neutrality in Court Filing

The Open Internet Rules are not subject to scrutiny under the First Amendment because they do not regulate any person’s speech. Broadband Internet access service, as the Federal Communications Commission found, is “service . . . that provides the capability to transmit data to and receive data from all . . . Internet endpoints.” That service provides a conduit for speech, and broadband Internet access service providers transmit others’ speech through that conduit. The Open Internet Rules regulate the conduct of those service providers. They cannot block or throttle lawful content, cannot charge for prioritization of some content over other, and must not unreasonably interfere with content transmission. The providers’ conduct is not speech that is restricted or compelled by the rules. Indeed, the Open Internet Rules are an instance of common carrier regulation, which is not and ought not to be subject to heightened First Amendment scrutiny.