The Situation: The Federal Communications Commission ("FCC") under President Biden is likely to revive Obama-era net neutrality rules repealed by President Trump's FCC.
The Issue: Net neutrality raises First Amendment questions that have yet to be addressed by the Supreme Court, although in 2017, then-D.C. Circuit Judge Kavanaugh concluded that the Obama-era net neutrality rules violated the First Amendment.
Looking Ahead: The First Amendment is likely to play a key role in any proceeding to revisit the FCC's net neutrality rules and in any subsequent litigation.
2015 Net Neutrality Rules
Net neutrality—the principle that broadband internet access service providers should transmit all internet content equally—has long prompted legal and policy debate, and the federal government's posture on the issue has shifted several times during the past decade. After several attempts to impose net neutrality during the Bush and Obama administrations, the FCC adopted net neutrality rules in the 2015 Open Internet Order to prevent broadband providers from blocking or slowing internet traffic to websites and applications. The FCC also classified broadband service as a Title II "telecommunications service" under the Communications Act.
First Amendment Issues
Broadband providers challenged the Open Internet Order, arguing in part that the net neutrality rules violated the First Amendment by forcing broadband providers to transmit speech with which they might disagree. In 2017, the D.C. Circuit upheld the net neutrality rules after concluding that nondiscrimination and equal access obligations do not violate the First Amendment. In a dissent from the denial of rehearing en banc, then-Judge Kavanaugh viewed the FCC's net neutrality rules as restricting broadband providers' editorial discretion over what content to carry over the internet in violation of the First Amendment.
2018 Restoring Internet Freedom Order
That First Amendment issue never reached the Supreme Court because the Trump FCC repealed the Obama-era net neutrality rules in the 2018 Restoring Internet Freedom Order. In that order the FCC also reclassified broadband internet access service as an "information service" under Title I of the Communications Act, and explicitly moved to preempt state net neutrality laws. In 2019, the D.C. Circuit largely affirmed the Restoring Internet Freedom Order, except the court vacated the FCC's preemption decision—clearing the way for a handful of states, including California, to enact their own net neutrality laws.
The Road Ahead
President Biden campaigned on a promise to restore the Obama-era net neutrality rules, and the Biden FCC appears poised to revive them. Since taking office, President Biden appointed a leading proponent of net neutrality as a White House advisor, and his Department of Justice withdrew a lawsuit challenging California's net neutrality law. The two current Democratic FCC commissioners have long championed net neutrality, and the acting chairwoman dissented from the Restoring Internet Freedom Order.
The First Amendment will loom large in any FCC proceeding to restore the net neutrality rules once the FCC is at full strength. In the time since the D.C. Circuit ruled that the First Amendment was no obstacle to the FCC's net neutrality rules, dissenting Judge Kavanaugh was elevated to the Supreme Court. As demonstrated by the Supreme Court's decision to invalidate the CFPB's structure in Seila Law LLC v. CFPB, then-Judge Kavanaugh's opinions on government actions and authorities often foreshadow the views of a majority of the Supreme Court. The Supreme Court's views about government regulation of online speech will likely play a central role in the conversation regarding the next iteration of the FCC's net neutrality rules.