The First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders—generally adverse to government oversight and government agencies—apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues without much thought about broader concerns such as First Amendment values.