AT&T Will Try To Make First Amendment Case Against Net Neutrality

When you think of the Internet and First Amendment issues, your mind probably conjures up images of people being able to freely express themselves online through websites, videos, and social media. But if you’re AT&T, the First Amendment was created to give Internet service providers the authority to have some sort of editorial control over the data they carry.

AT&T is one of the many plaintiffs suing the FCC in the hope of gutting net neutrality a second time. And in a document [PDF] filed with the court last week, the company outlines the issues to be raised in its lawsuit.

And right there under item #1 is: “Whether the FCC’s reclassification of broadband Internet access service as a telecommunications service subject to common carrier regulation under Title II violates the terms of the Communications Act of 1934, as amended, and the First and Fifth Amendments to the U.S. Constitution.”

AT&T also plans to raise First and Fifth Amendment issues with regard to interconnectivity (i.e., the connection of ISP networks to the backbone of the Internet) and whether wireless smartphone data should be classified as broadband.

The document sheds little light on AT&T’s actual arguments in these matters, but as Ars Technica’s Jon Brodkin points out, Verizon tried something similar in its lawsuit that ultimately neutered the original net neutrality rules.

In 2012, Verizon argued [PDF] that the 2010 Open Internet Order “infringes broadband network owners’ constitutional rights. It violates the First Amendment by stripping them of control over the transmission of speech on their networks.”

The company contended that “Broadband networks are the modern-day microphone by which their owners engage in First Amendment speech.” Note that this is not a statement about broadband users exercising their First Amendment rights on the Internet; it’s about the owners of broadband networks.

Verizon likened the operation of a broadband network to running a news organization on which it has “editorial discretion.”

“Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others,” wrote the company, making the case for why ISPs should be able to decide which content gets a higher priority over the rest of the Internet traffic. “Broadband providers could also give differential pricing or priority access to their over-the-top video services or other applications they provide, or otherwise feature that content.”

Of course, this sort of paid prioritization is exactly why the net neutrality rules were put into place, so that an ISP can’t simply decide that the company that pays it the most will reach customers faster. That puts the choice of available content in the hands of a company that you pay to do nothing more than act as a neutral conduit for your Internet access.

Without net neutrality, AT&T, Verizon, Comcast & others could not only prioritize those media outlets that pay them for the best access, but which are willing to put their companies in the best light. Sites like Consumerist and countless others that depend on a neutral Internet to be able to reach as many people as possible could be hamstrung in favor of deep-pocketed content providers who are not critical of the ISPs controlling the pipes of the Internet.