Abstract: For almost a decade, network neutrality has been among the most contentious and high-profile subjects of debate in Internet policy. This debate has taken place in government agencies, legislatures, courts, and the public square, in countries around the world. In the U.S., both sides assume the mantle of free expression. Advocates of network neutrality argue that adopting a rule to keep networks "neutral"--forbidding ISPs from discriminating against or blocking particular sites or software--would ensure that anyone can speak and listen to anyone else, without permission, and that any developer can create new speech-technologies like Blogger, Twitter, and Tumblr. Those opposed to network neutrality--primarily ISPs like cable and phone companies--argue that government involvement in the decisions of ISPs abridges their First Amendment rights. They assert a right to "edit" the Internet like a newspaper or cable company edits and curates articles and channels. They also argue that, under standard First Amendment doctrine, network neutrality is presumptively unconstitutional--an argument many academics seem to believe.
The FCC's network neutrality rule, adopted in December 2010, is currently on appeal. Four different amicus briefs, from scholars, former government officials, and others have addressed the First Amendment question.
What can the network neutrality debate tell us about freedom of speech, and translating Constitutional provisions, in the Internet Age?
Marvin Ammori heads a small law firm that advises Silicon Valley companies on public policy issues and is also a Schwartz Fellow at the New America Foundation and a Visiting Scholar at Stanford Law School's Center for Internet & Society, writing about the U.S. First Amendment. He was previously the head lawyer of an advocacy group, Free Press, where he worked primarily on network neutrality and open Internet issues and handled the Comcast/BitTorrent case. His work for several companies in their opposition to SOPA and PIPA earned him recognition by Fast Company magazine as one of the 100 Most Creative People in Business in 2012.