There were two interesting exchanges in today’s House hearing regarding oversight of the FCC. Rep. Joe Barton asked FCC Chairman Wheeler if there’s anything “we can do under existing law to shut [ISIS recruiting] sites down?” Later in the hearing, Rep. Bobby Rush asked a similar question, in light of Chicago’s awful gang violence, regarding gang communications.

In a word, no, the FCC and Congress generally can’t shut down websites (nor should they). But ISPs can. ISPs have a First Amendment right to block ISIS recruiting websites and other objectionable material. Not only do they likely have such speech rights, a 1996 federal law encourages Internet access providers (and other online intermediaries) to exercise editorial judgment and to “restrict access to or availability of material” that an ISP “considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable….” This means that the FCC’s so-called net neutrality rules are vulnerable to First Amendment attack, yet the ISPs seem reluctant to make the case.

The idea that Internet service providers are protected by the First Amendment is difficult to refute. Legal scholars ranging from Laurence Tribe to Christopher Yoo agree that the Open Internet Order (OIO) faces serious legal vulnerabilities. However, the major carriers have mostly shied away from the First Amendment arguments in their legal briefs. I suspect this decision is partly strategic so they can focus their legal energies on the administrative law vulnerabilities and partly to avoid negative PR. Despite this apparent strategy, I hope that the ISP challengers are prepared to articulate and defend the First Amendment arguments.

ISP filtering and editorial discretion occur for three major categories:

to protect subscribers from scammers and malicious websites and software; to filter (usually) unwanted emails, spam, and illegal content; and to give especially sensitive or discerning subscribers (like parents, religious families, and marginalized groups) access to cleaner, safer parts of the Internet.

Each of these practices means curating content, and those with editorial discretion are speakers.

ISPs therefore retain their First Amendment rights to enforce their policies and block content. Every ISP, for instance, has an acceptable use policy for consumers like AT&T’s, which says it reserves the right to pull down content that is “obscene, indecent, hateful, malicious, racist, defamatory, fraudulent, libelous, treasonous, excessively violent or promoting the use of violence or otherwise harmful to others.”

ISPs also exercise their speech rights by providing more limited, curated offerings to subscribers. As Harold Feld has said, absent FCC rules “nothing requires your ISP to deliver [my website]. If Comcast decides I am evil and blocks [my website], they can do it.” No ISP blocks Harold’s website because they dislike him, of course, but ISPs do offer “walled gardens” for certain users. Sprint last year rolled out a smartphone plan that included only social media, as well as white-listed and black-listed Internet content. T-Mobile offers Web filtering for children and teens. Some ISPs target Christian and Jewish families with packages that block online video, pornography, and gaming.

ISPs, large and small, also customize Internet access packages. Some add “bonus” Internet content to their subscribers Internet access. Many ISPs provide exclusive access to WatchESPN streaming sports and on-demand Internet-delivered content like HBO Go. Comcast curates Internet-delivered Comcast Stream television channels for its subscribers. Small wireless ISPs choose to prioritize certain real-time traffic like VoIP and gaming when bad weather degrades wireless connections. T-Mobile and MetroPCS now provide a specialized 480p stream of video for Binge On users and Verizon and AT&T have used LTE Broadcast to transmit major football games to their subscribers. There’s a phrase for this ability to add and subtract media content from one’s subscribers: editorial discretion.

In response to Susan Crawford’s law review article attempting to show that ISPs are not speakers protected by the First Amendment, Stuart Minor Benjamin says that “protecting users from receiving material that upsets them is substantive editing,” and speaker status may attach, even if it is content neutral like spam filtering. Benjamin goes further and states that he doesn’t agree “that there is any particular significance to whether or not [ISPs] start engaging in true substantive editing. Either way, they can say they want to engage in substantive editing, and that’s enough for First Amendment purposes.”

In my view, then, the major carriers and their free market supporters are making a strategic error in focusing on the administrative law arguments. Most of the focus of their legal briefs is about whether and how Chevron deference applies to the many reinterpretations the FCC made. But if the Court finds that Chevron applies, the ISPs are likely to lose the case. Even if the Court finds Chevron does not apply, the ISPs have an uphill battle.

Further, while many people are convinced the case will go to the Supreme Court whether the ISPs win or lose at the DC Circuit, what’s the basis for this certainty? There is no guarantee the overworked highest Court will grant appeal for a straightforward administrative law case, no matter how contentious the underlying proceeding. Feeling that “Title II is too important” is not enough. Since this is the first case against the OIO, there will be no circuit split for the Supreme Court to resolve. (Further, it is no secret that Justice Scalia takes a very dim view of the ISPs’ administrative law arguments on this issue.)

The challengers instead should focus more energies on making First Amendment arguments. First, the Supreme Court is more likely to correct a lower court’s error regarding the First Amendment rights of distributors who carry and filter speech. Second, the current legal strategy requires briefing the generalist judges on complex technical issues (DNS, packet switching, interconnection, PSTN, Computer Inquiries). Don’t get me wrong — the DC Circuit is likely the most tech-savvy court and has seen communications law cases before, but the FCC will do little to make these confusing techno-legal issues less confusing since the appearance of complexity suggests the need for deference to the expert agency.

In contrast, First Amendment arguments are much easier for challengers to articulate and for judges to understand. Further, the decades-long trend in First Amendment law is to the ISPs’ advantage. To the dismay of most of the tech left, the First Amendment protects more parties than ever before, including search engines and cable companies, and has become an important tool in fighting off novel theories of regulation that have a nexus to speech.

Legal scholars Joseph Kearney and Thomas Merrill noted in a law review that “The use of the First Amendment as an instrument of deregulation is part of one of the most dramatic changes in constitutional law in the last quarter-century [and] has become the preferred constitutional assault vehicle for telecommunications companies challenging government regulation.” When has anyone written anything resembling that about Chevron?

Similarly, Susan Crawford notes that “the absolutist [First Amendment] approach of the current Supreme Court to protection of speakers of all kinds — including distributors of speech — signals that the carriers will be likely to find a sympathetic ear there.” The First Amendment is a powerful source of authority to deregulate yet it appears that the major ISPs will decline First Amendment angles at oral arguments.

The FCC’s First Amendment arguments are flimsy. The Open Internet Order prevents ISP blocking and various forms of filtering online content; that is, the Order purports to remove ISPs’ editorial control over what they distribute. This is a significant threat to ISPs’ First Amendment rights that the FCC tries to downplay by stating that ISPs are not speakers and are therefore not protected by the First Amendment.

First, ISPs are not common carriers. ISPs have a variety of Internet access offerings and do not hold themselves out to customers indiscriminately. ISPs can discontinue service to subscribers who consistently violate user policies (like running a server out of a home or harrassing other users online). That is not common carriage. As explained above, ISPs can and do offer customized Internet packages that access different “parts” of the Internet. That is not common carriage.

Second, one’s speech rights do not depend on classification from an agency or Congress. As Benjamin notes, Congress could declare Upworthy and Reddit common carriers tomorrow but the applicability of the First Amendment in no way would depend on lawmakers’ characterization. Instead, the Supreme Court looks at what the alleged speakers do.

Unfortunately for the FCC, ISPs distribute their own content and the content of others and are protected by the First Amendment.

A federal district court noted in Comcast v. Broward County that, “Liberty of circulating is not confined to newspapers and periodicals, pamphlets and leaflets, but also to delivery of information by means of fiber optics, microprocessors and cable.” This is an application of the older Supreme Court decision in Lowell v. City of Griffin, Ga.: “The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Traditional distributors of publications — bookstores, newsstands, broadcasters — have First Amendment rights. Why wouldn’t modern distributors of publications?