Why it matters: On May 1, 2017, the District of Columbia Circuit declined to rehear its landmark June 2016 decision upholding the Federal Communication Commission’s (FCC’s) 2015 Open Internet Order, also known as the net neutrality rule. In the concurrence and one of the dissents, the judges addressed one of the issues frequently raised in the net neutrality debate—namely, whether the net neutrality rule is consistent with the First Amendment (the concurrence said yes, the dissent said no). While the topic may be moot as the FCC is currently considering a proposed rule that would completely roll back the net neutrality rule in its current form, the lively back-and-forth between the concurrence and dissent—both of whom made compelling arguments—gives interesting insight into the judges’ thinking and provides a possible indication on how they would come down on the First Amendment issue in connection with any replacement rule that comes before the circuit for consideration.

Detailed discussion: On May 1, 2017, the D.C. Circuit denied a petition for rehearing en banc the court’s June 2016 decision in United States Telecom Association v. Federal Communications Commission and United States of America, which upheld the net neutrality rule adopted by the FCC in June 2015. A lengthy concurrence and two equally lengthy dissents accompanied the rehearing denial.

In the concurrence, written by Judge Sri Srinivasan and joined by Judge David S. Tatel, Judge Srinivasan took the view at the outset that en banc review would be “particularly unwarranted at this point” because the FCC will soon be considering the adoption of a notice of proposed rulemaking titled “Restoring Internet Freedom,” applicable to internet service providers (ISPs), which would “replace the existing rule with a markedly different one.”

Judge Srinivasan, however, felt compelled to address one of the issues raised by Judge Brett Kavanaugh in his dissent, namely Judge Kavanaugh’s “misconceived” notion that the net neutrality rule “infringes the First Amendment rights of broadband ISPs.” Judge Srinivasan said that his dissenting colleague mistakenly “understands Supreme Court precedent to recognize a First Amendment entitlement on the part of an ISP to block its subscribers from accessing certain internet content based on the ISP’s own preferences, even if the ISP has held itself out as offering its customers an indiscriminate pathway to internet content of their own—not the ISP’s—choosing.” Judge Srinivasan continued:

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. 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.

Judge Srinivasan concluded that “[a]n ISP has no First Amendment right to engage in those kinds of practices” because “[t]he 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.”

Judge Srinivasan further said that “[n]o Supreme Court decision suggests otherwise.” He distinguished the Turner Broadcasting Supreme Court decisions relied upon by his dissenting colleague as arising in the “markedly different context” that “addressed the validity under the First Amendment of statutory ‘must carry’ requirements calling for cable television operators to ‘devote a portion of their channels to the transmission of local broadcast television stations.’” Judge Srinivasan could easily distinguish the Turner Broadcasting cases (noting that the “must carry” obligations were ultimately upheld by the Supreme Court) because:

[w]hereas a cable operator draws the protections of the First Amendment when it exercises editorial discretion about which programming to carry, an ISP falling within the net neutrality rule represents that it gives subscribers indiscriminate access to internet content without any editorial intervention. Cable operators, that is, engage in editorial discretion; ISPs subject to the net neutrality rule represent that they do not. The very practice bringing cable operators within the fold of the First Amendment’s protections is inapplicable in the case of broadband providers subject to the net neutrality rule.

Finally, Judge Srinivasan countered his dissenting colleague’s “slippery slope” argument, stating that “[t]he real slippery-slope concerns run in the reverse direction. Under our dissenting colleague’s approach, broadband ISPs would have a First Amendment entitlement to block and throttle content based on their own commercial preferences even if they had led customers to anticipate neutral and indiscriminate access to all internet content.”

In his dissent, Judge Kavanaugh would have granted rehearing and voted to vacate the net neutrality rule because, among other arguments, “it violates the First Amendment to the U.S. Constitution.” Contrary to the position presented by Judge Srinivasan in his concurrence, Judge Kavanaugh said that “[t]he threshold question is whether the First Amendment applies to ISPs when they exercise editorial discretion and choose what content to carry and not to carry. The answer is yes.”

Judge Kavanaugh disputed the concurrence’s view that once an ISP commits under the net neutrality rule to providing a “neutral, indiscriminate” conduit of content to subscribers, it gives up its First Amendment right to exercise editorial discretion. Judge Kavanaugh found “mystifying” and unsupported by “the Constitution and precedent” the FCC’s (and Judge Srinivasan’s) argument that, because many ISPs “simply allow access to all Internet content providers on an equal basis” under the net neutrality rule, the FCC is thus entitled to “prevent [ISPs] from exercising their editorial discretion or speech rights to favor some content or disfavor other content.” Per Judge Kavanaugh, “[t]hat is not how constitutional rights work. The FCC’s ‘use it or lose it’ theory is wholly foreign to the First Amendment.” Judge Kavanaugh also found the FCC’s argument that an ISP can “opt out” of the net neutrality rule by choosing to exercise editorial discretion to be “half-baked”:

Think about what the FCC is saying: Under the [net neutrality] rule, you supposedly can exercise your editorial discretion to refuse to carry some Internet content. But if you choose to carry most or all Internet content, you cannot exercise your editorial discretion to favor some content over other content. What First Amendment case or principle supports that theory? Crickets.

Judge Kavanaugh interpreted the Supreme Court’s “landmark” Turner Broadcasting decisions, which he said were controlling, to provide that:

the First Amendment bars the Government from restricting the editorial discretion of [ISP]s, absent a showing that an Internet service provider possesses market power in a relevant geographic market. Here, however, the FCC has not even tried to make a market power showing. Therefore, under the Supreme Court’s precedents applying the First Amendment, the net neutrality rule violates the First Amendment.

Finally, Judge Kavanaugh rejected the concurrence’s notion that ISPs should be treated differently from cable operators (to which the Turner Broadcasting decisions applied), stating that:

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.

It will be interesting to see how the First Amendment debate plays out in future rulings by the D.C. Circuit if and when the new “Restoring Internet Freedom” rule or something similar comes before the court for consideration.