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In May 2014, the Federal Communications Commission (FCC), on the ropes from two adverse D.C. Circuit decisions, proposed the latest in a series of regulations of broadband providers--the entities that serve as the gatekeepers for all content, applications, and services on the Internet. While in recent years the FCC has sought to regulate broadband providers to impose on them the duty not to discriminate against any of the traffic flowing through their pipes, in these latest Proposed Rules--in response to the recent D.C. Circuit decision Verizon v. FCC--the FCC has sought to enable broadband providers to discriminate in favor of or against certain content. These latest Proposed Rules are inconsistent with First Amendment values. Over the past two decades, the Internet has evolved into a vast public forum for expression and into “the most participatory marketplace of mass speech that this country--and indeed the world--has yet seen.” The FCC should implement strong net neutrality rules by regulating broadband providers as common carriers and should prohibit them from discriminating in favor of or against any legal content. Doing so would not violate broadband providers’ First Amendment rights. Rather, it is the absence of strong net neutrality regulations that threatens our preeminent First Amendment values: facilitating the uninhibited, robust, and wide-open marketplace of ideas; fostering the public debate and deliberation essential for the task of democratic self-government; and, in the process, protecting speech that is unpopular, disfavored, and less well-funded.

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GWU Law School Public Law Research Paper No. 2017-41; GWU Legal Studies Research Paper No. 2017-41

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