United States: Net Neutrality Proposals For Tech Platforms Raise First Amendment Concerns

Last Updated: September 27 2019
Article by Schuyler J. Schouten and Brett A. Shumate
Most Read Contributor in United States, September 2019

In Short

The Issue: Tech platforms face a hostile environment in Washington, with bipartisan consensus building behind proposals for additional regulation.

The Situation: Regulating how tech companies transmit online content is the latest phase of the "net neutrality" debate.

Looking Ahead: Imposing net neutrality on tech platforms—either legislatively or through executive action—could implicate First Amendment concerns.

Washington Policymakers Seek to Regulate Tech Platforms

In 2017, the Federal Communications Commission's ("FCC") Chairman alleged that tech platforms were censoring certain viewpoints on the internet. Since then, calls to break up or regulate tech platforms have become increasingly common on both sides of the political aisle. Now, Washington policy officials and lawmakers are turning rhetoric into action.

In 2019, Senator Hawley (R-Mo.) proposed a bill titled "Ending Support for Internet Censorship Act," which would restrict liability protection under section 230 of the Communications Decency Act unless internet companies prove that their practices are politically neutral.

News reports indicate that in addition to Congress, the Executive Branch may take action to address online censorship of political speech. The FCC and Federal Trade Commission could play important roles implementing any policy announcement.

All of these efforts come amid intense scrutiny of the role that technology platforms may play as a vehicle for the transmission of hate speech and foreign disinformation.

In short, Washington is an increasingly complex and hostile political and regulatory environment for tech platforms, with particular scrutiny of companies' role in transmitting (or declining to transmit) certain types of information based on its content.

Regulating Tech Platforms Is the Next Phase in the Net Neutrality Debate

Net neutrality is the principle that the government should force internet companies to transmit all speech equally.

Over the last decade, the FCC took several approaches toward net neutrality, culminating in its 2015 "Open Internet Order." The FCC adopted rules in that order to prohibit internet service providers from blocking or slowing internet traffic to websites and applications. The agency's stated rationale was that internet service providers had the incentive and ability to discriminate against certain websites or applications by blocking or slowing communications passing through their networks.

The latest proposals to regulate tech platforms are rooted in similar concerns about restricting access to information on the internet. Just as the FCC purportedly feared that internet service providers would discriminate against websites and applications, Washington policymakers now assert that tech platforms discriminate against certain speech on the internet. In both cases, the proposed solution is for the government to enforce the "neutral" transmission of information on the internet.

These concerns over content-based discrimination are coming to a head even as some lawmakers call for tech companies to exercise greater editorial control to limit the transmission of certain forms of information, including communications determined to be foreign disinformation. For example, this spring, the Senate passed a version of the FY 2020 National Defense Authorization Act authorizing the Director of National Intelligence to establish a Social Media Data Analysis Center to facilitate "analysis within and across the individual social media platforms for the purpose of detecting, exposing, and countering clandestine foreign influence operations." The Defense Advanced Research Projects Agency recently invited proposals for a suite of "semantic inconsistency detectors" to identify "falsified" media.

Regulating Tech Platforms Could Implicate First Amendment Concerns

Attempts to regulate internet content have long been the subject of complex litigation. In 1997, the U.S. Supreme Court ruled in Reno v. ACLU that certain provisions of the Communications Decency Act violated the First Amendment. More recently, the D.C. Circuit blocked the FCC's first two attempts to impose net neutrality on internet service providers, before the en banc court upheld the FCC's 2015 "Open Internet Order" over the dissent of then-Judge Kavanaugh. The FCC repealed that order in its 2018 "Restoring Internet Freedom Order," which is subject to litigation (again) in the D.C. Circuit.

Extending net neutrality to tech platforms could implicate First Amendment concerns because tech platforms engage in and transmit speech on the internet. Like cable companies, tech platforms curate content by promoting some speech over other speech and by blocking some speech altogether. The First Amendment applies to "editors and speakers in the modern communications marketplace," just as it does to newspapers and other media "traditionally protected by the First Amendment."

The Supreme Court has long recognized that compelled neutrality requirements pose unique First Amendment problems. As then-Judge Kavanaugh wrote, "[t]he Federal Government could not compel book publishers to accept and promote all books on equal terms or to publish books from authors with different perspectives." Forcing tech platforms to accept and promote all internet content on equal terms could raise similar concerns under the First Amendment. So too could a regulation forcing tech platforms to restrict access to certain online content.

Three Key Takeaways

  1. Tech platforms are under scrutiny from both sides of the aisle in Washington.
  2. Proposals to regulate tech platforms are the next phase in the net neutrality debate, but political and national security sensitivities make the policy debate particularly charged.
  3. Imposing net neutrality rules on tech platforms could implicate First Amendment concerns.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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