Radical, Judicial Activism in a Kavanaugh Dissent

            Starting today, Supreme Court Justice nominee Brett Kavanaugh will start a carefully orchestrated charm offensive highlighting his judicial temperament, respect for the rule of law and humility.  You won’t see that posture in at least one of his prior opinions.

            Take a look at Judge Kavanaugh’s dissent to the decision of the D.C. Circuit Court of Appeals not to hold an en banc re-hearing of the court’s affirmance of the FCC’s network neutrality rules:  https://www.cadc.uscourts.gov/internet/opinions.nsf/06F8BFD079A89E13852581130053C3F8/$file/15-1063-1673357.pdf.

            In his dissent, Judge Kavanaugh elevates Internet Service Providers’(ISPs’) First Amendment rights to neutralize any attempt by the FCC to regulate their economic behavior.  His opinion weaponizes the First Amendment as an unimpeachable right to be free of any government law or regulation that even indirectly affects what they transmit.

            So much for respect for settled law.  Ample case precedent supports the longstanding view that the First Amendment does not insulate ventures, such as common carriers and even hotel operators, from laws and regulations that impose non-discrimination requirements.  Judge Kavanaugh conveniently ignores the fact that ISPs primarily switch, route and deliver content created by other ventures.  No First Amendment right attaches to this conduit function which closely parallels cable television companies’ compulsory carriage of broadcast television signals.

            Moreover, ventures do not even have to be classified and regulated as common carriers to trigger nondiscrimination requirements.  Judge Kavanaugh remarkably fails to see that the Supreme Court’s the cable television must carry cases (FCC v. Midwest Video Corp., 440 U.S. 689 (1979); Turner Broadcasting v. FCC, 512 U.S. 622 (1994) and 520 U.S. 180 (1997)) impose non-discrimination and compulsory carriage on companies that might elsewhere have some First Amendment rights, e.g., how to package and tier content.

            Judge Kavenaugh ignores the open access rights of television broadcasters to cable television subscribers to support his view that the FCC cannot impose any similar duty of access on ISPs.  That’s a radical notion the majority summarily dismissed in both the main opinion and the en banc hearing denial:

            Because “the accessed speech is not edited or controlled by the broadband provider but is directed by the end user . . . the Commission concluded that broadband providers act as “mere conduits for the messages of others, not as agents exercising editorial discretion subject to First Amendment protections. . . . Petitioners provide us with no reason to question those findings.

            Because the rules impose on broadband providers the kind of nondiscrimination and equal access obligations that courts have never considered to raise a First Amendment concern . . . they are permissible.

[U.S. Telecom Ass’n v. FCC at 111; https://www.cadc.uscourts.gov/internet/opinions.nsf/3F95E49183E6F8AF85257FD200505A3A/$file/15-1063-1619173.pdf]