By Chad Marlow, Senior Advocacy and Policy Counsel, ACLU
 

Judge Brett Kavanaugh, President Trump’s nominee for the Supreme Court, will have his Senate confirmation hearings next month. An exacting look at his judicial record is crucial to understand where he stands on issues of critical importance to the American people. 

In one such case, United States Telecom Association. v. FCC, the D.C. Circuit Court of Appeals was called upon to review the constitutionality of the Federal Communications Commission’s net neutrality regulations from 2015. Kavanaugh’s dissenting opinion places a troublingly limited value on the free speech interests of the public relative to those of internet service providers.

In his United States Telecom dissent, Kavanaugh acknowledges the importance of the net neutrality issue, writing that:

The FCC’s 2015 net neutrality rule is one of the most consequential regulations ever issued by any executive or independent agency in the history of the United States. The rule transforms the Internet … prohibiting Internet service providers from exercising editorial control over the content they transmit to consumers. The rule will affect every Internet service provider, every Internet content provider, and every Internet consumer. The economic and political significance of the rule is vast.

The FCC’s net neutrality order prevented internet service providers from engaging in content-based discrimination. Such rules are essential to ensuring all internet users have the ability to freely access information and communicate their opinions online. Unfortunately, Kavanaugh was not concerned with the free speech of average people in United States Telecom, but only with the free speech interests of corporations.

As an organization devoted to the robust application of the First Amendment to online speech, the ACLU takes the concern that government regulation could violate ISPs’ First Amendment rights seriously. But principles of net neutrality do not violate anyone’s First Amendment rights. Rather, they promote core First Amendment values.

The essential question in the case was whether the government’s interest in enabling the public to speak out freely and access information online was “substantial” enough to justify a limited infringement of the rights of the ISP companies to manipulate their customers’ online access.

Context matters. With respect to the net neutrality rules, the government’s interest — at least under the Obama administration — was ensuring that the public could freely and fairly access all lawful internet content without discrimination by ISPs. ISPs have sizeable power to regulate users’ speech by speeding up, slowing down, and blocking access to internet content — and, therefore, they have a major influence over society’s marketplace of ideas. As a result, there was no less invasive or effective method of securing full and fair access than through net neutrality rules. The ISPs’ countervailing corporate interest, which in the view of the Obama administration was less important than the public’s interest, was to be able to leverage their role as the gatekeepers of the internet to maximize their profits and their ability to influence public opinion on a limitless range of topics.

Amongst these two competing interests, government policymakers could have come down on the side of the ISPs, but they did not. Rather, through its net neutrality rule, the Obama administration exhibited a clear preference for protecting the online free speech interests of the American people.

Kavanaugh took the opposite position. To rule in favor of striking down the FCC’s rule, he needed to find that the government’s interest in promoting the public’s ability to learn and communicate online, free from corporate bias and censorship, was not “substantial.” To reach such a strained result, Kavanaugh engaged in some judicial prestidigitation: Beyond devaluing the importance of net neutrality to the free speech interests of the public, he also had to elevate the risk net neutrality presented to ISPs’ free speech rights and, to provide himself extra cover, suggest the Constitution’s framers would have done the same thing.

Kavanaugh wrote that what made the net neutrality rules so constitutionally objectionable was their intent to “compel … private Internet service providers to supply an open platform for all would-be Internet speakers, and thereby diversify and increase the number of voices available on the Internet.” While 86 percent of Americans believe this goal is a laudable one, Kavanaugh’s framing of the government interest was decidedly pejorative.

Kavanaugh then set out to elevate the free speech interests of the ISPs. He framed the ISPs’ interest in being permitted to engage in online content discrimination as their First Amendment right to exercise “editorial discretion.” Kavanaugh argued that the Constitution’s framers would have wanted to protect modern ISPs in the same manner they sought to protect the editorial rights of newspaper and book publishers. But in the context of net neutrality rules, this analogy inappropriately conflates the role of online content providers — like YouTube and USAToday.com — who generate internet content, with ISPs, who merely provide access to it. 

This is why the ACLU’s brief in the case labeled the ISPs’ editorial interests within the net neutrality context “at best speculative.” Nevertheless, given the limited value he saw in the government promoting the public’s free speech interests, and the high value he saw in the ISPs’ editorial rights, Kavanaugh concluded that ISP interests could only be overridden in the case of demonstrated “market dysfunction.” He did not recognize such dysfunction in the ISP market, despite the FCC’s own findings that more than 40 percent of American households have no market choice at all, because they live within the confines of a broadband provider monopoly. 

Kavanaugh’s dissent is based upon a convenient fallacy: that net neutrality regulates what content ISPs can and cannot publish. If that were actually the case, the government would be hard-pressed to assert a sufficient basis for infringing upon those rights. However, in the net neutrality context, where ISPs connect internet content providers with consumers, different interests are at stake. As one of Kavanaugh’ s Circuit Court brethren, Judge Sri Srinivasan, wrote in a critique of Kavanaugh’ s dissenting opinion:

[N]o Supreme Court decision supports the counterintuitive notion that the First Amendment entitles an ISP to engage in the kind of conduct barred by the net neutrality rule — i.e., to hold itself out to potential customers as offering them an unfiltered pathway to any web content of their own choosing, but then, once they have subscribed, to turn around and limit their access to certain web content based on the ISP's own commercial preferences.

Kavanaugh’s position in United States Telecom would have a devastating effect if it was embraced by the U.S. Supreme Court. It chooses the free speech interests of powerful corporations over those of the public. If Kavanaugh had been in the majority in the appeals court, he would have thrown out the net neutrality rules and the public’s free speech interests along with them. (President Trump’s FCC did just this when it reversed its predecessor’s rules last year.)

Prior to voting on the nomination of Brett Kavanaugh, all senators need to ask themselves a critical question: Are you willing to accept a Supreme Court justice who values the free speech interests of corporations over the free speech and intellectual freedom of your own constituents?

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