Sixth Circuit Protects Free Speech from the Inevitable Censorship of the FCC’s “Net Neutrality” Rules

​On Thursday, the U.S. Court of Appeals for the Sixth Circuit delivered a stinging rebuke to those who believe social media companies should be treated as common carriers. One of those true believers is Tim Wu, former Biden administration advisor and widely regarded as a thought leader of progressive policy. Wu wrote:
 
“Since its activation, the First Amendment has presupposed an information-poor world, and it focuses near-exclusively on the protection of speakers from government, as if they were rare and delicate butterflies threatened by one terrible monster.”
 
Wu’s quote, in which the monster is the government, comes from a 2018 Michigan Law Review piece entitled “Is the First Amendment Obsolete?” In The New York Times more recently, Wu protests that “liberal as well as conservative judges and justices have extended the First Amendment to protect nearly everything that can be called ‘speech,’ regardless of its value or whether the speaker is a human or a corporation.”
 
The implication here, of course, is that we need smart regulators who can spot the difference between speech that has value, and that which should be discarded. Wu also seems to suggest that corporations – collections of humans that can range from ExxonMobil to the ACLU – shouldn’t have First Amendment rights at all.
 
More than anything, Wu’s conceit is that we should live under a noocracy (rule by the supposed wise, as attested to by their Ivy League degrees). Wu advocates reducing large social media companies to common carrier status, to be regulated by the government.
 
This is all relevant today because it was Wu who coined the term “net neutrality,” a set of rules adopted by the Federal Communications Commission to force all internet service providers to give all content in their pipeline the same priority. The Sixth Circuit in Cincinnati bought none of this when it struck down the FCC’s net neutrality rules.
 
The court’s reasoning was prosaic. Under Loper Bright, a recent Supreme Court opinion that limits (Chevron) deference to government agencies, such sweeping rule-making by the FCC would require authorization by Congress. Transforming social media companies into common carriers to be regulated like railroads or airlines is an act that must be rooted in a statute. Congress has passed no law authorizing common carrier status for social media companies or net neutrality.
 
But issues of grand principle were also protected by the Sixth Circuit. First, the court protected the financial model that incentivizes investors to fund companies like Verizon or Comcast to build out and maintain the national networks of fiber optic cable. Without this incentive, there would be no internet to regulate.
 
Second, and most important, if internet companies become common carriers, then the way in which they handle content can also be regulated. The FCC’s rules would have put speech itself in the hands of regulators. And then the one terrible monster truly would be destroying the butterflies.
 
Protect The 1st salutes the Sixth Circuit for a wise decision that protects speech from those who believe they know which speakers have “value” and which ones don’t.

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