Profits equals liberty in our corporate democracy

Verizon believes that even if Congress had authorized network neutrality regulations, those regulations would be unconstitutional under the First Amendment. "Broadband networks are the modern-day microphone by which their owners [e.g. Verizon] engage in First Amendment speech," Verizon writes.

Verizon believes that it's entitled to the same kind of control over the content that flows through its network as newspaper editors exercise over what appears in their papers. That includes the right to prioritize its own content, or those of its partners, over other Internet traffic.

"Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner, they nonetheless possess discretion that these rules preclude them from exercising," Verizon writes. "The FCC’s concern that broadband providers will differentiate among various content presumes that they will exercise editorial discretion."

Verizon points to a 1994 case in which the Supreme Court ruled that regulations requiring cable television providers to carry broadcast television channels triggered First Amendment scrutiny. By the same token, Verizon says, network neutrality rules trigger First Amendment concerns by restricting broadband providers' rights to allocate more bandwidth to some content than to others.

That's not all. Verizon also believes the FCC's rules violate the Fifth Amendment's protections for private property rights. Verizon argues that the rules amount to "government compulsion to turn over [network owners'] private property for use by others without compensation."

The Fifth Amendment prohibits the taking of private property without compensation. According to Verizon, network neutrality rules are "the equivalent of a permanent easement on private broadband networks for the use of others without just compensation."

Indeed, quoting a recent law review article, Verizon argues that network neutrality rules allow third parties to "physically invade broadband networks with their electronic signals and permanently occupy portions of network capacity."

[P]ower always follows property. This I believe to be as infallible a maxim in politics, as that action and reaction are equal is in mechanics. Nay, I believe we may advance one step farther, and affirm that the balance of power in a society accompanies the balance of property in land. The only possible way, then, of preserving the balance of power on the side of equal liberty and public virtue is to make the acquisition of land easy to every member of society; to make a division of the land into small quantities, so that the multitude may be possessed of landed estates. If the multitude is possessed of the balance of real estate, the multitude will have the balance of power, and in that case the multitude will take care of the liberty, virtue, and interest of the multitude in all acts of government.