Verizon Claims Right to Edit What You See on the Internet

In the summer of 2012, Verizon Communications filed its opening brief in Verizon v. FCC, the federal-court challenge to the FCC's 2010 Open Internet Order — the rulemaking that had imposed the first formal net-neutrality requirements on broadband carriers. The legal theory in the brief, which became the focus of the article and of the broader civil-liberties response, argued that Verizon enjoyed First Amendment protection over the editorial decisions it might make about what content to carry over its network, equivalent to a newspaper's editorial discretion.

The argument was a deliberate provocation. Net-neutrality advocates had long described the issue as a common-carriage question — broadband as the contemporary equivalent of telephone or telegraph carriage — where the carrier's role was not editorial but conduit. By framing it instead as speech, Verizon's brief sought to relocate the legal question into the First Amendment's much more carrier-friendly precedent space. Free Press, Public Knowledge, the EFF, and most of the access-network civil-liberties community responded with sharp opposition briefs.

The D.C. Circuit decided Verizon v. FCC in January 2014, vacating the no-blocking and no-discrimination rules on a different theory — that the FCC had erred by imposing common-carriage obligations on entities not formally classified as common carriers under Title II — but leaving open the path the FCC took in 2015 with the Title II reclassification. The First Amendment argument from Verizon's 2012 brief, while not the basis of the eventual ruling, became part of the foundational legal-theory record cited in net-neutrality litigation through every subsequent reclassification cycle.