In the coming weeks, lawmakers will try to pin down where President Trump’s Supreme Court pick, Brett Kavanaugh, stands on a host of high profile, hot-button issues like abortion rights, healthcare, and whether a sitting president can be indicted. But there is no question where Kavanaugh stands on net neutrality—he thinks it was unconstitutional.
In a 2017 dissent, Kavanaugh lodged two major objections to the FCC’s 2015 net neutrality order. The first is that the FCC overstepped its authority in establishing such “major rules.” But the second, and more eye-opening claim, is that the FCC's 2015 order trampled Internet Service Providers’ First Amendment rights.
Codified by the FCC in a 2015 order, net neutrality rules prevented ISPs which claim to provide access to the entire Internet from favoring certain websites or content over others (excluding more specialized ISPs). But last year, the FCC, now led by Trump appointee Ajit Pai, repealed those rules, despite widespread public support for them.
In his argument against net neutrality, Kavanaugh likened ISPs to bookstores, and called the FCC’s 2015 order “half-baked” and “foreign” to the First Amendment.
“If a bookstore (or Amazon) decides to carry all books, may the Government then force the bookstore (or Amazon) to feature and promote all books in the same manner?” he questioned, adding that without a showing of “market power,” the government “must keep its hands off the editorial decisions of Internet Service Providers.”
If "market power" does not need to be shown, Kavanaugh argues, what's to stop the government from regulating "the editorial decisions of Facebook and Google, of MSNBC and Fox, of the NYTimes.com and WSJ.com, of YouTube and Twitter?" he writes. "Can the Government really force Facebook and Google and all of those other entities to operate as common carriers?"
Although Kavanaugh acknowledges that net neutrality rules reflect a common fear that "the real threat to free speech today comes from private entities, such as Internet service providers, not from the Government,” he insists that the First Amendment nevertheless functions as a shield for ISPs against government intrusion into what is transmitted, or not transmitted, over their networks.
“How Internet Service Providers exercise their editorial discretion is up to them, not the Government,” Kavanaugh concludes. “The Government may not tell Internet service providers how to exercise their editorial discretion about what content to carry or favor any more than the Government can tell Amazon or Politics & Prose what books to promote.”
Kavanaugh’s dissent was delivered in connection with a 2017 order denying a motion for an en banc review by the full U.S. Court of Appeals for the District of Columbia of the decision in United States Telecom v. FCC. That case, decided in 2016, upheld the legality of the FCC's 2015 order on net neutrality.
Such denials are often delivered with little if any comment—but in this case, the court’s denial was accompanied not only by Kavanaugh's dissent, but also by a lengthy concurrence by judge Sri Srinivasan (joined by judge David Tatel), in direct response to Kavanaugh.
In his concurrence, Srinivasan points out that both of Kavanaugh’s arguments are “misconceived,” but that Kavanuagh is especially out on a limb with his First Amendment concerns.
Srinivasan notes that even the principal parties who challenged the FCC’s 2015 net neutrality order, (which included "virtually every broadband provider") found no First Amendment issues. Ditto for the web platforms Kavanaugh cited, including Facebook, Google, Twitter, YouTube, and Amazon (all but one of which has joined on to fight for net neutrality). Even the two FCC Commissioners who voted against the FCC’s 2015 order did not cite any First Amendment issue, Srinivasan adds.
Of course, as of June 11, when the new FCC rules went into effect, ISP’s are now free to engage in blocking or throttling traffic, as long as they disclose those practices to consumers. However, the fight over net neutrality continues.
In May, the Senate voted to block the FCC's repeal. And a number of states are now pursuing their own net neutrality legislation. The FCC repeal is also being challenged in court, and could conceivably wind up before the Supreme Court in the coming years.
With net neutrality still broadly popular (and with support cutting across party lines) the issue could come up in Kavanaugh's confirmation hearing.
Meanwhile, of interest to the publishing and library communities, Kavanaugh’s record on copyright and intellectual property issues is also coming under scrutiny.
Bloomberg this week reported that Kavanaugh has a lengthy record involving IP-related cases, and that he tends to take a narrow view of agency regulations. For example, the report notes, Kavanaugh has criticized the Copyright Royalty Board in the past.
In a piece for the Hollywood Reporter, which looks at some recent cases, Eriq Gardner suggests that Kavanaugh’s views on the on the “administrative state” could mean “a rude awakening” for the entertainment industry and the regulatory schemes they depend on.
“Of course, this all cuts the other way, too, as the industry might enjoy less regulation itself,” Gardner concedes, “but nevertheless, [Kavanaugh’s] appointment to the Supreme Court could inject instability for the entertainment industry, or at least, not stand in the way of marketplace upheaval triggered by technological advancements.”