In a law review article just published in I/S: A Journal of Law and Policy for the Information Society, Free State Foundation President Randolph J. May concludes that, ‘‘in today’s competitive digital broadband marketplace, net neutrality mandates that dictate ISPs’ choices concerning the dissemination of content are not likely to survive a challenge under the First Amendment.’’ The article, entitled ‘‘Net Neutrality Mandates: Neutering the First Amendment in the Digital Age,’’ may be accessed online.

Net Neutrality mandates typically are framed to prohibit broadband Internet service providers from taking any action to “block, impair or degrade” subscribers from accessing any website, or from “discriminating” against any unaffiliated entity’s content by refusing to post or send such content over its facilities. May acknowledges that, under current jurisprudence, the medium may impact the degree of First Amendment protection accorded. Nevertheless, broadband ISPs “possess First Amendment rights as entities entitled to use their facilities to convey messages of their own choosing.” Under traditional First Amendment law, “it is just as much a free speech infringement to compel a speaker to convey messages the speaker does not wish to convey as it is to prevent a speaker from conveying messages the speaker wishes to convey.”

The article examines the landmark First Amendment cases in the broadcast, newspaper, cable, and Internet areas. While conceding that the constitutionality of net neutrality regulation is not entirely free from doubt because the Supreme Court has not ruled on compelled access mandates in the Internet context, May concludes that “in this age of media abundance or, some might even say media overabundance—an environment that was almost unimaginable even a couple of decades ago—it is baffling that the imposition of Fairness Doctrine-type neutrality restrictions is even being seriously considered.”

I/S: A Journal of Law and Policy for the Information Society is an interdisciplinary journal of research and commentary concentrating on the intersection of law, policy, and information technology. I/S is published through a partnership between the Moritz College of Law at the Ohio State University and Carnegie Mellon University’s H.J. Heinz III School of Policy and Management.

“Net Neutrality Mandates: Neutering the First Amendment in the Digital Age”