The Civil Right to connect: Extending Equal Protection to internet access
By Cora Haggerty
The Equal Protection Clause of the Fourteenth Amendment guarantees that the State shall not “deny to any person within its jurisdiction the equal protection of the laws,” ensuring that true equality is fulfilled through the presence of meaningful and equitable opportunity, not simply the absence of explicit discrimination. Today, the promise of equal protection cannot be fully realized without equitable access to the internet, which has become indispensable for education, employment, healthcare, civil participation, and engagement with public institutions. Millions of Americans, however, remain disconnected from this critical part of social, economic, and civic life. More than 40 million Americans lack reliable internet access, and many more face affordability barriers. The Federal Communications Commission reports that more than one-third of Americans have access to only one or no high-speed broadband provider. Rural and tribal communities are especially underresourced, with approximately 22.3% of Americans in rural areas and 27.7% on tribal lands lacking access to fixed terrestrial broadband compared to 1.5% of urban populations. New mapping data suggest that reported coverage is overstated, and that millions of Americans face inadequate speeds or no service at all. This lack of access is not just a gap in technological opportunity or a peripheral issue, but rather, a structural inequality and barrier to equal participation in American society, with inequality in connectivity becoming inequality under the law. The denial or substantial limitation of access along socioeconomic or geographic lines constitutes a modern form of discrimination by perpetuating systemic inequalities in education, employment, civic participation, and as a result, internet access should be recognized as a civil right under the Equal Protection Clause.
The internet is the new forum of public life. In Packingham v. North Carolina (2017), the Court observed that social‑media sites are the “modern public square,” rendering connectivity necessary for participation in education, employment networks, and civic forums. As a result, connectivity has gained a constitutional dimension when disparities persist and are systematic, and should be applied under the Equal Protection Clause. The Equal Protection Clause was established to secure the meaningful equality of opportunity and the substantive possibility of accessing necessary public goods and services. As a critical judicial decision in U.S. history, the Supreme Court’s ruling in Brown v. Board of Education (1954) recognizes that segregated educational systems denied black children equal opportunity to participate in American civic life where it was not merely the formal equality that mattered, but the opportunity of accessing the public good of education. Similarly, inequities in internet access demonstrate a longstanding and continuously reinforced structural inequality. In rural areas, for example, infrastructure deficits remain acute. One brief from the United States Department of Agriculture (USDA) reports that between 22.3% and 50% of Americans in rural communities have poor broadband access. Empirical analysis demonstrates that the median download speeds for rural and low‑income users trail those of urban and high‑income peers by more than 150 Mbps in many states. These inequalities translate into social consequences because students lacking broadband are denied full participation in remote learning, job seekers without access are barred from the primary gateways of employment, and entire communities remain excluded from the digital forums of civic conversation and public service. As a result, this manifests as educational disadvantage, job-market exclusion, and civic marginalization.
There are additional cases that exemplify that when access to essential public goods is systematically denied, the constitutional guarantee of equality applies. In Shelley v. Kraemer (1948), the Court held that state‑enforced racially restrictive covenants constituted unconstitutional state involvement in private discrimination. In Heart of Atlanta Motel v. United States (1964), the Court upheld broad access to public accommodations under both constitutional and statutory frameworks.
One possible counter‑argument can be seen through San Antonio Independent School District v. Rodriguez (1973), in which the Supreme Court declined to recognize education as a fundamental constitutional right and consequently applied a rational‑basis standard rather than heightened scrutiny. Nevertheless, this case left open the possibility that disparities reinforcing poverty and compounding disadvantages may trigger equal-protection concerns. The Rodriguez’ reasoning suggests that when access to essential opportunity is denied by structural inequality, constitutional scrutiny may be warranted. Given that connectivity mediates access to education, employment, and civic participation, the principle of Rodriguez supports treating internet access as a crucial dimension of substantive equality. With this in mind, to enact substantive equality under equal protection, the law must recognize internet access as a “fundamental interest.” Once so recognized, state actions or regulatory regimes that create or perpetuate disparate access must withstand heightened scrutiny and advance a compelling governmental interest.
Recognizing internet access as a civil right encourages doctrinal and policy solutions. Doctrinally, courts should apply heightened scrutiny to governmental or quasi‑governmental policies that result in persistent digital exclusion. For policy regulation, this entails regulatory frameworks centered toward universal access by promoting subsidized services for low‑income households, infrastructure investment in rural and historically underserved communities, transparent reporting of provider coverage and competition, and incentives for private actors to serve “market‑fail” zones. Additionally, internet access should be required to be affordable, with nearly one‑third of non‑broadband households reporting cost as the principal barrier. If affordability is a structural barrier, it cannot be treated as an incidental market failure, but instead as a matter of access to constitutional opportunity.
As the courts have long recognized that access to education, public forums, and public accommodations cannot be segregated or denied, so too must they recognize that access to the digital infrastructure underpinning modern civic, educational, and economic life cannot be contingent on geography, income, or race. In a society where the internet is the primary portal to opportunity and participation, denying reliable connectivity is denying membership in civil society. Recognizing internet access as a civil right would ensure that equality under the law remains meaningful, and not merely aspirational, for all.
