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]
