The battle over federal "net neutrality" rules resumes Monday when a federal appeals court takes up the challenge filed by one of the country's largest Internet service providers:
Adopted by a divided
Verizon argues that "just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others." That would be true if ISPs marketed Internet connections that looked like cable TV, with limited packages of websites the ISPs selected. Obviously they don't, and it's hard to imagine who'd be willing to give their ISP that kind of control.
Nor is delivering data from a website to one's customers a form of legally protected speech. The Internet access that ISPs provide isn't an expression, it's a conduit. As Duke University Law School professor Stuart M. Benjamin has written, "a company's nondiscriminatory transportation (of bits or anything else) enables communication, but it has no content, and thus expresses no ideas."
Verizon's assertion that it has a 1st Amendment right to edit the data passing through its network contrasts sharply with the position it has taken in fights over its users' unauthorized downloading of movies and music. For example, it has shielded itself from liability for copyright infringement by invoking legal "safe harbors" reserved for services that merely transmit users' data with no editorial control.