Recent highly public moves by Facebook and Google to deactivate users or to otherwise censor or handicap certain speech the companies deem “hate speech” or “fake news” has reopened one of the oddest but most popular arguments for net neutrality — that somehow categorizing internet service providers (ISPs) as public utilities is necessary to protect citizens' First Amendment rights.
The argument is that if Verizon, Comcast, or AT&T are not forced to act as “dumb pipes,” these companies will foreclose speech that they find distasteful. Even more convoluted is the assertion that if other companies (such as Netflix or Amazon) pay ISPs for faster service by private agreement, faster service in-and-of-itself is a threat to free speech as it “prefers” some speech over other speech — even if anyone has the same opportunity to buy the prioritized service and some do not even need it. These are odd arguments for various reasons, not least of which is that the First Amendment only limits Congress, not private actors (such as ISPs), from abridging speech. But most strikingly, the focus of net neutrality advocates on ISPs is odd as these companies do act as content conduits, not content platforms, unlike edge providers such as Google, Facebook, Amazon, and Twitter.
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