Brett Kavanaugh Chose Corporations Over the Public in a Major Net Neutrality Fight

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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Anonymous

Oh sure, that worked so well for every other industry where the companies get to choose everything about the service they provide. Regulation for the public good is required at times or we do not get progress and/or equal service. Net Neutrality isn't telling a company what they can or cannot publish, just that they cannot tell me I have to pay more money to watch Netflix than Hulu because they have a financial interest in Hulu. Normally, this kind of corporate behavior would be self regulating, but we don't have true freedom of choice in ISPs. Until I have a connection that allows me to pick, choose and change at a whim who is providing my service, these companies have a lock on my service.

Linda Ramsey

The free speech of citizens is ALWAYS more important than corporations or any business organization. A suprems court judge is there to make life fair and equitable for citizens, not commercial interests. I will vote accordingly.

Vanessa G.

Net Neutrality has been gone for 2 months and nothing bad even happened. Internet speed has actually improved. We have risen 6 ranks globally on internet speeds by country. So I am glad to see that our new Supreme Court Justice is correct in supporting the ending of Net Neutrality.

Now if we could only fix Internet censorship by the likes of the ACLU...

AK

You have just proven that you have no clue about net neutrality.

b-Bird

I have yet to find anything that is even mildly positive about the nomination of Brett Kavanaugh.

Seph

Trump's polices have done more to boost minorities than any other president since Reagan. It makes no sense for the ACLU to fight this progress. The ACLU is so far left they can't even see the middle.

AnonymouS

I see the position from which you present. Someone probably like you once suggested it would be far more important and newsworthy to find an instance 'when Trump is honest,' rather than to continue covering the details of the thousands of times he has lied to the American public. But this is wrong in a major way.

No. It is of extreme importance if Trump lied to the American public when at his inauguration he took a vow to protect the Constitution of the United States. Just this one lie is important and belies his position. And he broke the election criminal laws to win the election, so then his vow becomes void. Trump's words aren't credible as a consequence of breaking this vow. So the political system breaks down into loyalists and constitutionalists. So you see your position?

Anonymous

ISP's are utilities, similar to electricity and natural gas. The free speech rights of an ISP cannot genuinely be the issue here. I will resist the temptation to embrace a theory of corruption.

Is there a public policy argument for limiting the flow of information in light of foreign election tampering? I don't know... just raising the question.

Christopher Cha...

Democracy in the United States is in serious jeopardy RIGH NOW!

Repealing the Affordable Care Act (which will end up literally killing MILLIONS of Americans by denying them healthcare) and the repeal of Roe vs. Wade rights would just be the beginning of the IMMENSE DAMAGE to American voters in general if President Trump succeeds in getting Brett Kavanaugh onto the US Supreme Court, because democracy itself, as we know it, will be trashed as well!

Republican “Justices” on the US Supreme Court are already often referred to as “corporatist” Justices, because of their preference to rule in favor of corporate and super rich interests over the US Constitutional interests of “We the People” (REAL people) that the US Constitution was originally intended to serve. Already, Republicans “Justices” have dishonestly installed one President (GW Bush) in spite of the proven FACT that Al Gore actually won the 2000 Presidential Election (according to Electoral College rules), and they have absurdly and dishonestly ruled that “corporations are people” and “money equals speech” as far as US Constitutional rights are concerned in spite of the FACT that that anyone who can read English can see that the word “corporation” doesn’t appear at all in the US Constitution and there is nothing else in the US Constitution that can be HONESTLY used to support such absurd claims. Bret Kavanaugh played a key role in the US Supreme Court’s highly dishonest decision to steal the 2000 Presidential election away from Al Gore, so his presence on the US Supreme Court almost guarantees that in a relatively short amount of time, our government will become a dictatorial oligarchy similar to what we presently see in Vladimir Putin’s Russian Government!

I am seriously concerned about the apparent fact that our national’s news agencies haven’t been informing their audiences about this very significant jeopardy regarding Donald Trump’s efforts to get Brett Kavanaugh onto the US Supreme Court. I recommend that we get some MASSIVE demonstrations nationwide SOON to defeat the nomination of Bret Kavanaugh! Senate hearings on that nomination are scheduled to begin September 4, 2018, and the confirmation vote will be a few days after that.

AnonymouS

While everything you say I find to be realistic and on the mark, I would make one counter point that you seem to not grasp. The U.S. Constitution doesn't present a clear case for corporations, but when it was written the purpose for leaving slavery legal was for the purpose of commerce, and international trade. Even the Dread Scott SCOTUS decision was in favor of keeping slavery in place for the continuation of such business operations, although still not corporations -- providing profits for the bottom line just as though they were. If you weren't clear since it's not commonly adhered to today, taxes on profits are government revenues, and so of course government wants corporations to do more so they pay more. Plus, corporations want to reduce government and its regulations. You're probably thinking that it's not SCOTUS' responsibility to represent corporations, but history of business activity shows the law is also here to protect those corporations' interests too.
That being said, Brett Kavanaugh's nomination shouldn't be pursued because it came from a president who has broken criminal laws and doesn't adhere to the Constitution of the United States.

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