It is likely that Tom Wheeler’s proposed net neutrality policies will not withstand judicial review as the new regulations directly implicate broadband access providers’ rights under the Fifth Amendment Takings Clause and the First Amendment. However, it is important to remember that most of the technological progress in the last few decades of Internet history came about through a process of trial and error, not unlike the FCC’s attempts to move towards a “fair, fast and open” Internet and other important legal achievements in civil rights, education and healthcare access. Promulgations are rarely perfect, but the principles behind them may still be deserving of support.
For many, net neutrality strikes at the heart of our American mythos. It represents the quest for freedom and the frontier. It is no euphemism to suggest that the Internet has become the modern infrastructure for the First Amendment. All First Amendment rights are implicated by net neutrality, for users, content providers and ISPs alike: freedom of speech, freedom of the press, freedom of assembly, freedom of religion and freedom of petition. Similarly, net neutrality is a debate about opportunity. The promise of the west is alive and well in the world wide web, as Tim Wu writes, recalling the “geographic frontiers of earlier America and the technological frontiers of the twentieth century, in industries like radio and early computing.” For net neutrality proponents, progress is best guided by freedom. Without open access, there is no open frontier.