Pro-Corporate Judicial Activists Have Shredded the First Amendment of the Internet

The Federal Communications Commission’s ability to set and enforce net neutrality rules was revoked on the second day of 2025 by the Troika Republican judges on the US Court of Appeals for the Sixth Circuit. The three-judge panel’s decision, which changed the FCC’s authority to require Internet service providers to treat all communications equally, dealt a major blow to efforts to protect the free flow of information that is at the heart of American democracy. What makes the ruling doubly devastating is the fact that the incoming Republican administration — and the corporate leadership of the Republican-controlled Congress — has shown no sympathy for net neutrality. In fact, President-elect Donald Trump’s choice to lead the FCC, Brendan Carrliterally wrote the FCC’s section of the Project 2025 memo, which will serve as the new administration’s offensive blueprint for public interest regulation.

The appeals court ruling represents a sharp setback for a years-long effort by civil rights, civil liberties and media reform groups to maintain an open Internet in the face of free-spending lobbying by telecommunications corporations seeking to rewrite the rules in their favor. Telecoms have long wanted to get rid of net neutrality rules, aptly described as “The First Amendment of the Internet.” In particular, they sought leeway to create a multi-level communication system where there are fast lanes for messages from multinational corporations and powerful political interests, and slow lanes for community groups and grassroots organizations that cannot afford to pay for priority services. .

Rejecting the Federal Communications Commission’s authority to regulate broadband services in favor of consumers and open discourse, the conservative lawyers — two of whom were appointed by former President George W. Bush and one of whom was appointed by former President Donald Trump — tipped the scales toward telecom giants and economic and political elites who can pay to control communications in the United States. And the FCC will likely stand by like a toothless tiger.

“Now the Federal Court has ruled that the FCC cannot protect a free and open Internet,” explained tech-savvy industry observers Gizmodo. Wired title your report on the “Death of Net Neutrality Is a Bad Omen” decision. Jenna Leventoff, Senior Counsel at the American Civil Liberties Union, said“(Thursday’s) ruling to repeal net neutrality will have a devastating effect on free speech on the Internet.” And Evan Greer, director of the activist group The fight for the futurewhich organizes “for a future where technology is a force of liberation, not oppression,” condemned the ruling as an anti-democratic denial of the will of the people. “Millions of people from across the political spectrum were part of the movement that fought for and won tough net neutrality rules at the FCC because no one wants their cable or phone company to be able to cheat them or control what they see and do online , – Greer said.

At the heart of the problem is the fact that Congress never codified net neutrality, which means the FCC’s standards are forever in flux due to changes in presidential administrations that shape and change the composition of the commission, and rulings by courts that don’t understand much. about how corporations will use technology to their advantage.

The outgoing Biden administration sought to create clear protections for an open Internet: President Biden issued an executive order in 2021 calling on the FCC to restore net neutrality rules that were put in place during Barack Obama’s presidency and then repealed during his first term Trump. Biden appointed net neutrality advocates to the FCC, and in the spring of 2024 the Democratic majority on the commission released its “Protection and protection of the open Internet” rule. FCC Chair Jessica Rosenwortzel explained at the time of the rule’s release that “in today’s digital economy, we need to have a national net neutrality policy and make it clear that the national communications expert has a say when it comes to broadband. It’s good for consumers, good for public safety, and good for national security. And so we are taking this action today under Title II of the Communications Act.”

Rosenworcel has often pointed out that Biden’s FCC adoption of net neutrality was a response to overwhelming public demand.

– Let’s start with consumers, – said the chairman.

They spoke out in droves when that agency repealed net neutrality. They jammed our mailboxes, overwhelmed our online comment system, and jammed our phone lines. They demanded the return of net neutrality…

Consumers have made it clear to us that they don’t want their broadband provider to make deals that offer fast lanes for some services and slow lanes for others. They don’t want their vendors involved in lock-in, regulation, and paid prioritization. And if they have problems, they expect the FCC to be able to answer.

The FCC chairman was right on all these counts.

Unfortunately, opponents of net neutrality managed to get the case to block Rosenworcel and the current FCC from being heard by a panel of judges from one of the most right-wing and pro-corporate judicial districts in the country. That panel unanimously decided to adopt the new standard set by the Supreme Court in June 2024. Loper Bright Enterprises v. Raimondo solutionwhich overturned a 40-year-old precedent that gave federal agencies flexibility to interpret laws governing the areas of commerce they regulate. The Runner Bright The decision opened new avenues for undermining federal oversight, representing a major victory for corporations and a serious threat to federal regulatory intervention by consumers, civil society, and democracy. And this turned out to be exactly the case with net neutrality.

While advocates of the FCC’s power to promote net neutrality may appeal the Sixth Circuit’s ruling to the Supreme Court, it is unlikely that the conservative majority on the high court will challenge the lower court’s ruling. And even if they did, the conservative majority in Trump’s FCC is expected to oppose not only net neutrality but a broad vision of the commission’s role as a protector of consumers and democratic discourse.

Congress could still step in, as Rosenwortzel pointed out. “Consumers across the country have told us time and time again that they need fast, open and fair Internet,” said outgoing FCC chairman. “With this decision, it is clear that Congress must now heed their call, take responsibility for net neutrality, and enshrine the principles of an open Internet into federal law.”

Matt Wood, vice president and general counsel of the media reform group Free Press, which filed the April 2024 defense of the FCC with the Benton Institute, the National Association of Utility Regulatory Commissioners, the Open Technology Institute and Public Knowledge. driving said“Despite this setback, Free Press will continue to fight—in the courts, in Congress, and everywhere else—for an open, fair, and free communications network for all.”

Some of the best options for protecting net neutrality will be in states where California and other progressive jurisdictions are making efforts to protect the open Internet.

Ultimately, however, whether the battles are at the federal, state, or local level, the responsibility to restore and expand net neutrality rests with voters.

Over the years, media scholar Robert W. McChesney, with whom I have written a number of books on media and democracy, argued that the “great democratic vision that gave birth to the Internet” will only be preserved if the American people demand that it be preserved through their votes, petitions, and letters to members of Congress. This argument is more relevant now than ever.

Only with a Congress committed to restoring net neutrality at the national level and restoring the FCC’s authority to protect a free and open Internet will this democratic vision be restored.