Under Supreme Court precedents, "the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market," Kavanaugh wrote. "Here, however, the FCC has not even tried to make a market power showing. Therefore, under the Supreme Court's precedents applying the First Amendment, the net neutrality rule violates the First Amendment."Now I have my strong issues with proponents of net neutrality but this "editorial discretion" point was new to me. What exactly is "editorial" about data traveling over/through the data connection between a website and it's viewer?
"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," Kavanaugh wrote. "Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes."Um. No. When you click on a link or enter a location in your browser (for example) the ISP is not generating any content whatsoever. Transmission of content is not the generation of content. When an ISP intercepts traffic and injects advertising then they are creating content. I doubt that Kavanaugh was discussing that. But things such as advertising injection is the only time the ISP is "generating content". The content of a website is not an ISP's editorial content. It doesn't belong to the ISP. The ISP doesn't get ownership rights over that material simply because it travelled over their fibre or copper. Now the next item, that they may decide what content they will transmit, is the actual crux of the argument. As recent events have shown, many companies are flexing their muscle to censor websites and organizations they do not like from using internet services. I suppose Kavanaugh has no problem with that. I do. I'll skip over the "decide what content they will transmit" because the article discusses that, but to think that there is no "meaningful" difference between transmitting ESPN the channel which (ESPN app aside) cannot be viewed by those without a TV and cable subscription, and ESPN.com which is accessible by anyone, anywhere without a subscription to any "reception provider" is certainly a "meaningful difference". I'm troubled that Kavanaugh would not recognize that.
Kavanaugh's argument did not address the business differences between cable TV and Internet service. Cable TV providers generally have to pay programmers for the right to carry their channels, and cable TV providers have to fit all the channels they carry into a limited amount of bandwidth. At least for now, major Internet providers don't offer a set package of websites—they just route users to whichever sites the users are requesting. ISPs also don't have to pay those websites for the right to "transmit" them, but ISPs have argued that they should be able to demand fees from websites.I would hold that this argument by Ars authors holds water even if cable providers did not have limited bandwidth.
Srinivasan and Tatel also provided the two votes supporting the FCC's right to impose net neutrality rules in the 2016 version of the case. "Because a broadband provider does not—and is not understood by users to—'speak' when providing neutral access to Internet content as common carriage, the First Amendment poses no bar to the open Internet rules," they wrote at the time. The net neutrality rules forbid ISPs from blocking lawful websites and did not apply when ISPs cooperated with emergency communications and law enforcement officials, public safety agencies, and national security authorities.And this is where I depart with most net neutrality people. If we are to agree that ISPs do not speak when providing "access" to information or services, then the same should apply to any other website offering "access". That PayPal can cut off financial services (though claimed not to be financial services) to websites it objects to is "speech" by PayPal and it suppresses the "speech" of those seeking to do legal financial transactions. Similarly when Twitter bans a user for "hate speech" (whatever that is, since SCOTUS says there is no such legal thing) but offers an endorsement (via blue check mark) of others who engage in the same speech, then it is no longer neutral, it is engaging in "speech" and suppressing the speech rights of others. These are not neutral actions. You cannot say that an ISP must grant access to any and everything and then exempt owners of public forums from the same. The bar needs to be that so long as the speech is legal, those providing public services must allow it or ban it equally or be subject to civil liability. To do otherwise would be to make a [continued] mockery of things such as DMCA's safe harbor rules that ONLY apply if the actor is neutral.