Today the D.C. Circuit denied the petition for rehearing en banc challenging the soon-to-be replaced net neutrality rules. Some of those challenging the net neutrality rules have said they will now seek Supreme Court review. (Why, you may ask, would they go to the Supreme Court if the FCC is going to replace the rules anyway? Because many net neutrality opponents strongly disagree with the D.C. Circuit’s reasoning and don’t want a future FCC to be able to rely on it.)

Judges Brown and Kavanaugh dissented from the denial of rehearing, and each wrote to explain why. Brown and Kavanaugh both argued that Chevron deference doesn’t apply, but it’s Kavanaugh’s second argument that I want to focus on: that net neutrality regulations implicate the First Amendment.

Kavanaugh relies on Turner Broadcasting System, Inc. v. FCC. (Fun fact: it was decided in the term that Kavanaugh, Neil Gorsuch and Eugene Volokh clerked.) The central language from Turner is:

Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment. Through “original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,” cable programmers and operators “see[k] to communicate messages on a wide variety of topics and in a wide variety of formats.”

The key was that cable programmers and operators “engage in and transmit speech” (emphasis added) — mere transmission wasn’t enough. What cable operators speakers was their own programming and their practice of “exercising editorial discretion,” entailing their “‘see[king] to communicate messages.'”

Kavanaugh sees Internet service providers as analogous to cable operators. From page 23 of his dissent:

Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit. Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.

Indeed, some of the same entities that provide cable television service – colloquially known as cable companies – provide Internet access over the very same wires. If those entities receive First Amendment protection when they transmit television stations and networks, they likewise receive First Amendment protection when they transmit Internet content. It would be entirely illogical to conclude otherwise. In short, Internet service providers enjoy First Amendment protection of their rights to speak and exercise editorial discretion, just as cable operators do.

As I have discussed at some length in a Duke Law Journal article and in shorter form in a Harvard Law Review Forum comment, I think the Supreme Court’s jurisprudence does not support Kavanaugh’s conclusions. I won’t go into all the arguments here, but would simply note that ISPs subject to the net neutrality rules transmit information “without change in the form or content of the information as sent and received” (that is the statutory definition of “telecommuniations” under 47 U.S.C. 153(50)). By the terms of the net neutrality rules, the entities subject to these rules are not engaged in substantive editing. The net neutrality rules note that ISPs can choose to offer a substantively edited Internet experience (e.g., a service limited to family-friendly websites), and if so A) the ISPs would be engaging in substantive communication and thus speech for First Amendment purposes, and B) the net neutrality rules would not apply to such a curated Internet offering. ISPs generally don’t offer such services presumably because not enough customers want their ISP to give them a curated Internet.

But what about what ISPs really want to do — charge more money for faster service? Wouldn’t that be editorial discretion and thus speech? No. The key, as Turner highlights, is seeking to communicate messages. As I note in an article on algorithms and speech, the Supreme Court has always required substantive communication or self-expression as a necessary condition for the application of the First Amendment. And simply charging more money, or providing faster speeds, is not a substantive communication.

It would be different if an ISP devoted its transportation to messages with which it agreed. If, for example, a document transport company decided to deliver only documents to and from Democratic-affiliated groups, delivery would likely entail a communication. Every delivery would communicate to the recipient that a group that shared its political orientation was sending it a document.

Consider the ramifications of a contrary conclusion about differentiated pricing or service: Apparently, charging more money or offering better service would constitute a communication, which means that any company with differentiated pricing would be engaging in speech through such differentiated pricing. As I noted in my Duke Law Journal article in discussing ISPs providing better service to entities that pay more money:

If the word “communication” is to have any meaningful content, this cannot qualify. Note that nothing about this form of communication is related to what is being priced (bits, oil, whatever). That is, the alleged communication would inhere in the pricing itself. Finding that tiered pricing constitutes communication verges on the absurd, as that would mean that virtually every business practice is a form of speech under the First Amendment. It is the rare business that does not give better service or products to an entity that pays more money. … [J]ust as one would not claim that FedEx, in treating all mailings the same, was engaging in speech, one also would not claim that FedEx, in providing slower service for less money and faster service for more money, was engaging in speech by differentiating among mailings. Indeed, under this theory one could see prices of any sort as messages: the dichotomy would simply be between “no service” (if one is not willing to pay anything) and “some service” (if one is willing to pay something). Thus merely having prices would be speech under the First Amendment. And this principle would not be limited to companies transmitting speech.