In 2010, the FCC issued its Open Internet Order, currently the subject of litigation in the DC circuit court. Among many other things, the regulations, often referred to as “network neutrality,” forbid Internet-service providers from blocking specific content unless it is either unlawful (like child pornography) or harmful (like computer viruses). A still-unresolved question is whether the regulations render illegal providers like Jnet, popular among Orthodox Jews in Brooklyn, and its Christian equivalent True Vine Online (TVO), which block users’ access to sacrilegious and sexually explicit websites. Arielle Roth writes:
[U]nder the network-neutrality rules, Jnet and TVO’s services are impermissible—and not simply as a matter of interpretation. . . . The FCC may forbear from enforcing the rules against Jnet and TVO, preferring to avoid a religious-freedom quagmire. But inaction will not necessarily avoid litigation. It is easy to imagine that a content provider blocked by Jnet or TVO would demand that the FCC enforce the network-neutrality rules and prohibit religious-based blocking.
Fortunately, Jnet and TVO are not powerless in the face of these oppressive regulations. Thanks to the Religious Freedom and Restoration Act (RFRA), a federal statute that prohibits the federal government from burdening an individual’s religious exercise, Jnet and TVO would likely be granted an exemption to the anti-blocking rule. . . .
A court finding that the network-neutrality rules harm Jnet and TVO’s religious liberty would implicitly acknowledge that these broadband providers possess editorial discretion in controlling the content over their networks. But that is precisely what the FCC denied in countering First Amendment challenges to the Open Internet Order. To escape constitutional scrutiny, the Commission declared that broadband providers were mere “dumb pipes,” charged with blindly transmitting content pursuant to the Internet user’s requests. But as is clear from the case of Jnet and TVO, this is a myopic portrayal of the speech interests at stake, and network neutrality imposes serious burdens on broadband providers’ editorial discretion.