At a recent House hearing, FCC Chairman Tom Wheeler was asked whether the Commission would consider regulating websites and social media as a strategy in fighting terrorist propaganda over the Internet. In response, Chairman Wheeler rejected the option of blocking Internet speech, stating he was “not sure [FCC] authority extends to picking and choosing among Web sites.”
This was clearly the correct response. Beyond falling outside of the FCC’s statutory authority, regulation of Internet websites would face serious First Amendment problems. Even assuming that the interest in combating radicalization proved compelling, there is no way the Supreme Court would find such limits on Internet speech to be narrowly tailored to this objective. As the Supreme Court has repeatedly recognized, the way to combat hateful and false speech is not through government limits on speech, but through counter-speech.
Chairman Wheeler’s response echoes his other recent commitments to refrain from regulating Internet content. A few weeks ago, he announced that the FCC had no plans to extend cable and satellite TV regulations to Internet video. And this week, he reassured Mark Zuckerberg that the FCC had no plans to regulate social media. Instead, Chairman Wheeler asked Mark Zuckerberg to censor radical Facebook content on a voluntary basis.
Putting aside the inappropriateness of a high-ranking government official coercing a private entity into doing an agency’s bidding, how ironic that Chairman Wheeler would make such a suggestion to Zuckerberg, when the FCC has prohibited broadband providers from engaging in the very same conduct. Under the FCC’s network neutrality rules, which preclude broadband providers from blocking “lawful” Internet content, broadband providers are deprived of the right to filter objectionable content, even in the case of terrorist propaganda.
Facebook’s status as a social media service rather than a broadband provider does not justify the Chairman’s raised eyebrow. As we explained in a previous column, broadband providers are First Amendment speakers just like websites, and would be fully in their right to exercise editorial discretion over their networks. That they have traditionally declined to interfere with content, choosing instead to operate as “dumb pipes,” does not cancel out this right, and is itself a form of editorial discretion. Nor do all Internet providers companies transmit data indiscriminately: companies like Jnet and Dnet block content on the basis of religious values, and now find their business models in peril.
The Commission must recognize that coercive network neutrality is in tension with the Chairman’s statements affirming websites’ rights to control their own content. By refusing to recognize the editorial rights of broadband companies, the FCC embroils itself in a constitutional problem reminiscent of the Fairness Doctrine, and wastes Internet providers’ valuable role in the fight against Internet radicalization.
We are encouraged by Chairman Wheeler’s commitment not to deprive Facebook of the right to police hateful content on its network. But beware, Mark Zuckerberg: Do not assume that the FCC will spare your company in the future. An FCC victory in the network neutrality challenge, currently under review by the DC Circuit, may embolden the FCC to pursue further regulations of Internet content. If broadband providers are mere dumb pipes, there is no reason to leave other conduits of speech, like search engines and social networks, unregulated.
Regulating broadband is a slippery slope. Chairman Wheeler’s recent statements on websites and social media are small consolation as long as the network neutrality rules remain in place. The FCC must recognize its own hypocrisy and preserve a strong and open Internet by leaving it alone.