Constitution Daily

Smart conversation from the National Constitution Center

Podcast: Net Neutrality, the Internet and the First Amendment

January 30, 2014 by NCC Staff


Legal scholars are still sifting through a recent appeals court ruling that mostly struck down Net Neutrality, the FCC’s power to bar Internet service providers from discriminating against information providers such as websites.


Internet_Archive_mirror_serversBut one issue the three-judge panel didn’t tackle was a First Amendment claim made by Verizon that it had a constitutional right to pick and choose how it offers “edge services” like Netflix, YouTube and news websites to its customers. This issue could surface as further legal and lawmaking fights over Net Neutrality occur.


The Verizon v. FCC Net Neutrality case has been widely watched since 2010, when then-FCC commissioner Julius Genachowksi led the FCC’s efforts to make sure Internet service providers like Verizon didn’t block or discriminate against services that competed with Verizon’s own content offerings.


Verizon cried foul, since the FCC’s policy decision seemed to contradict earlier court rulings. Verizon also said the ruling forced it to provide unlimited bandwidth without compensation (as a Fifth Amendment Takings Clause violation). And Verizon also made a First Amendment argument about its freedom to promote and publish content as an information service provider.


To discuss the wide-ranging implications of the Net Neutrality decisions, we called on two of the leading experts on the subject.


Tim Wu is the Isidor and Seville Sulzbacher Professor of Law at Columbia Law School. Wu’s fields are the Internet, media and communications industries, and he was the first person to coin the term “net neutrality.”


Stuart M. Benjamin is Douglas B. Maggs Professor of Law and Associate Dean for Research at Duke Law. From 2009 to 2011, he was the first Distinguished Scholar at the Federal Communications Commission.


The National Constitution Center’s Jeffrey Rosen moderates this fascinating discussion, which not only touches on constitutional issues, but some very interesting implications related to the court’s recent decision for consumers and businesses alike.


To listen to the full podcast, use the player below or click on this link: Listen to this podcast


For more on the topics discussed by Benjamin and Wu, here are links to recent published research:


Tim Wu on “Network Neutrality, Broadband Discrimination” in the Journal of Telecommunications and High Technology Law (2013)


Tim Wu on “Machine Speech” in the University of Penn Law Review (May 2013)


Stuart M. Benjamin on “Algorithms and Speech” in the University of Penn Law Review (May 2013)


Stuart M. Benjamin on “Transmitting, Editing, and Communicating: Determining What ‘The Freedom of Speech’ Encompasses” in the Duke Law Review (May 2011)


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