Open Access and the First Amendment: A Critique of Comcast Cablevision of Broward County, Inc. v. Broward County

To what extent does the Free Speech Clause of the First Amendment bar the adoption of “open access” regulations? Open access (or “net neutrality”) refers to a policy that would require broadband Internet providers, such as cable and phone companies, to allow competitive Internet Service Providers (ISPs) onto their broadband lines at nondiscriminatory rates. A federal district court in Florida recently held Broward County’s open access ordinance unconstitutional on the grounds that it would force speech – in the form of Internet content – on to the local cable company. If the district court’s analysis is correct, then open access regulations are foreclosed by the Free Speech Clause. This article argues that open access regulations are, in fact, thoroughly consistent with the First Amendment. Broadband providers maintain the kind of “bottleneck” control over Internet content that justifies regulations aimed at facilitating the free flow of information. Broadband providers are already using their strategic position to interfere in the e-commerce and video-downloading markets, and they have the power to speed up or slow down the delivery of Web-pages and other Internet applications. By breaking the broadband provider’s bottleneck control over Internet content and applications, open access regulations serve the important government objectives of facilitating robust public discourse and free markets. The First Amendment does not stand in the way of this important policy proposal