There are many reasons why Congress should not adopt new laws mandating so-called net neutrality for broadband Internet service providers. But an often overlooked and underappreciated one is that net-neutrality mandates likely would violate the First Amendment free speech rights of the ISPs, such as Verizon Communications Inc. or Comcast Corp., to which they would apply. This is a case where greater sensitivity paid to constitutional values will lead to sound policy.
While different net-neutrality proposals are pending in the House of Representatives and Senate, all have this in common: One way or another, they propose to restrict ISPs from taking any action to “block, impair or degrade” consumers from reaching any Web site or from “discriminating” against any unaffiliated entity’s content. For example, one of the most fulsome expressions of restrictions, a bill drafted by senators Olympia Snowe, R-Maine, and Byron Dorgan, D-N.D., felicitously called the “Internet Freedom Preservation Act,” states that ISPs shall not “block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content … made available over the Internet.”
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