Introducing Judge Brett Kavanaugh: Siding with Big Business and Big Brother

Submitted on July 13, 2018

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Round-Up for the Week of July 9-13, 2018

On July 9, President Donald Trump nominated Judge Brett Kavanaugh to fill the Supreme Court vacancy left by the retirement of Justice Anthony Kennedy. This week, we examine some of Judge Kavanaugh’s decisions on key communications policy issues, like net neutrality, the First Amendment, and surveillance.

At 53, Kavanaugh is relatively young, consistent with President Trump's desire to appoint judges who can serve on the High Court for decades. Since 2006, Kavanaugh has served on the U.S. Court of Appeals for the District of Columbia Circuit, often called the nation's second-most-powerful court. He was appointed to that post by President George W. Bush, after serving as Bush's White House staff secretary. According to Brookings Institution contributor Stuart Brotman, Kavanaugh "represents, along with Justice Elena Kagan, the strongest combination of tech savviness, administrative law expertise and depth of legal scholarship." Judge Kavanaugh has written more than 300 opinions in the 12 years he has been on the D.C. Circuit -- and some of these have direct implications for the future of communications policy.

Kavanaugh v. Chevron

“[W]ithout a doubt, Kavanaugh will be a Chevron skeptic, which is entirely consistent with the Trump Administration desire to destroy the administrative state." -- Benton Senior Fellow Gigi Sohn

Many federal policymakers and advocates are wary of Judge Kavanaugh’s desire to rein in the agencies at the heart of the modern administrative state, as articulated through his opinions on Chevron v. NRDC.

During the 1930s, Congress ratified the creation of new agencies as part of President Franklin Roosevelt’s New Deal. After years of deliberation, Congress codified the activities of the agencies in the Administrative Procedure Act (1946), which sets forth the processes through which regulations and other forms of legislative implementation may proceed. As William Galston wrote for Brookings:

This statute gives formal and, in the eyes of many, quasi-constitutional status to the modern administrative state. It also raises enduring questions about the relationship between agencies and the three constitutionally established branches of government. For example, when an agency claims authority to promulgate a regulation, who has the power to limit the exercise of this authority? When someone takes an agency to court asserting that a regulation lacks legislative justification, what standards should the courts use to weigh this claim?

Nearly a quarter of a century ago, in Chevron v. NRDC (1984), the Supreme Court offered a clear answer: unless Congress has spoken clearly on the subject of a regulation, the courts should defer to an agency’s decision as long as it is reasonable, even if the courts would have reached a different interpretation. Whenever a statute is ambiguous, the agency enjoys wide discretion. Anything that is not unreasonable lies in the zone of the permissible.

Essentially, “Chevron deference” is the notion that courts should tend to defer to federal agencies’ expertise when the agencies are interpreting ambiguous statutes.

As both an appellate judge and legal commentator, Kavanaugh has been critical of the Chevron decision. In a 2016 article in the Harvard Law Review, he states that Chevron “has no basis in the Administrative Procedure Act” and represents “an atextual invention by courts.” In fact, he adds, the decision is “nothing more than a judicially-orchestrated shift of power from Congress to the Executive Branch.”

“From my more than five years of experience in the White House,” he declared, “I can confidently claim that Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.” He continued, “Presidents run for office on policy agendas and it is often difficult to get those agendas through Congress. So it is no surprise that presidents and agencies often will do whatever they can within existing statutes. And with Chevron in the mix, that inherent aggressiveness is amped up significantly.”

Galston claims that Kavanaugh believes the legislative will of Congress should prevail over executive power, at least when the courts are prepared to interpret statutes authoritatively.

And, because Kavanaugh sees the Chevron decision as a source of constitutional distortion, he is determined to limit its scope. There are different ways to go about this, but, according to Galston, where Kavanaugh breaks new ground is his notion that the courts should hesitate to expand agency discretion. Kavanaugh’s plan, according to Galston, is to interpret the scope of Chevron as narrowly as possible whenever circumstances permit. And, if the occasion presents itself, he may well vote to overturn it. What would be the result? Galston again:

A post-Chevron world would expand judicial power in the administrative sphere at the expense of both Congress and the executive. More regulations probably would fail judicial tests. The regulatory process, already more like a marathon than a sprint, would slow further. In response, Congress might work harder to make its legislative intentions clear, and the White House might work harder to remain within the four corners of congressional intent.

Kavanaugh’s Chevron position has support from Senate Commerce Committee Chairman John Thune (R-SD). Kavanaugh's record on Chevron demonstrates "that when it comes to the regulatory agency fiat, he's going to defer to Congress and the laws of the land as opposed to something that comes out of an executive agency. To me that makes sense, that's adhering the law" and applying the Constitution, "which is what we want a judge to do," Thune said.

Would a Kavanaugh confirmation mean an immediate overturn of Chevron? Benton Senior Counselor at the Georgetown Law Institute for Public Representation Andrew Schwartzman says "It will take a number of years for changes to core First Amendment doctrine, Chevron deference and other legal doctrines to be changed."

But federal agencies would be contrained. Public Knowledge’s Harold Feld said Kavanaugh, "would make it extraordinarily difficult for Congress, federal agencies, or the states to protect consumer privacy, or to address increasing concerns such as the proliferation of fake news, or to prevent network operators or digital platforms from censoring speech.”

Industry First Amendment Free Speech Rights

Kavanaugh’s view of the First Amendment is also sure to affect future communications policy.

Benton Senior Fellow Gigi Sohn said, "Kavanaugh has been on the fringe of First Amendment jurisprudence," believing "that network operators like [internet service providers] have First Amendment rights akin to those of individuals." Sohn continued:

For 85 years, the First Amendment rights of network operators like...broadcasters and cable operators have always been balanced with the rights of the public. Kavanaugh's ascension to the bench could start the mainstreaming of a legal theory that would all but eviscerate the public's rights with regard to networks that use public rights-of-way and by law are required to serve the public.

"Kavanaugh's positions are a nightmare," said Free Press Policy Director Matt Wood. "His unhinged and extremist views are a menace to a broad range of rights and liberties...Having a justice who thinks that the companies we pay to carry our speech should also get to decide what we say is an extraordinarily dangerous proposition, for people across the political spectrum."

Harold Feld, senior vice president at Public Knowledge, said, “Judge Kavanaugh has consistently found that the First Amendment exists not to preserve civil liberties, but to protect corporate power. Anyone concerned with the future of consumer protection or competition should find Judge Kavanaugh’s nomination extremely troubling.”

Net Neutrality

Kavanaugh’s views on Chevron and the First Amendment colored his 2017 decision on network neutrality.

If you recall, the D.C. Circuit twice upheld the 2015 net neutrality rules adopted by the Federal Communications Commission under then-Chairman Tom Wheeler, despite Kavanaugh's dissent.

Wheeler's rules—which prohibited blocking, throttling, and paid prioritization—were upheld by the D.C. Circuit in a 2-1 panel decision in June 2016, and again when the full court denied the broadband industry's petition for an en banc rehearing in May 2017.

In 2017, serving on the U.S. Court of Appeals for the D.C. Circuit, Judge Kavanaugh issued his dissent against net neutrality rules for two main reasons: 1) he believed the FCC lacked the authority to implement the rules and 2) he believed the net neutrality rules violated the First Amendment rights of ISPs by preventing them from “exercising editorial control” over Internet content. Kavanaugh’s Chevron philosophy guides the first reason, his First Amendment interpretation the latter.

As mentioned, Judge Kavanaugh is against Chevron deference, and believes that the FCC should not get Chevron deference on "major" rules. Kavanaugh believed that the net neutrality rule “is one of the most consequential regulations ever issued,” but also that, "Congress did not clearly authorize the FCC to issue the net neutrality rule" or to impose common-carrier obligations on ISPs.

But even authorization from Congress would not have saved the net neutrality rules from Kavanaugh's dissent, as he also argued that the rules violated ISPs' First Amendment free speech rights.

As you may know, consumers generally expect ISPs to deliver Internet content in un-altered form. For example, you may expect to visit ESPN.com without Comcast interfering with your request, since this is the basic open network structure the Internet has been built upon.

But in 2017, Judge Kavanaugh argued that ISPs are like cable TV operators. And, since cable TV companies can choose not to carry certain channels, he claims Internet providers should be able to choose not to allow access to certain websites.

"Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit," Kavanaugh wrote. "Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes."

Therefore, according to Kavanaugh, rules restricting the actions of ISPs (like net neutrality rules) amounted to intruding on the companies’“editorial discretion” and, therefore, violated the First Amendment. Kavanaugh again:

[Under Supreme Court precedents,] the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market. Here, however, the FCC has not even tried to make a market power showing. Therefore, under the Supreme Court's precedents applying the First Amendment, the net neutrality rule violates the First Amendment.

D.C. Circuit Judges Sri Srinivasan and David Tatel disputed Kavanaugh's arguments in their majority 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.

"Because a broadband provider does not—and is not understood by users to—'speak' when providing neutral access to Internet content as common carriage, the First Amendment poses no bar to the open Internet rules," they wrote at the time.

Judges Srinivasan and Tatel also disputed Kavanaugh’s Chevron argument. "[T]he Supreme Court, far from precluding the FCC's [net neutrality] Order due to any supposed failure of congressional authorization, has pointedly recognized the agency's authority under the governing statute to do precisely what the Order does," they wrote.

Jon Brodkin noted that Kavanaugh's First Amendment argument did not address the business differences between cable TV and Internet service. “Cable TV providers generally have to pay programmers for the right to carry their channels, and cable TV providers have to fit all the channels they carry into a limited amount of bandwidth,” Brodkin wrote. “At least for now, major Internet providers don't offer a set package of websites—they just route users to whichever sites the users are requesting. ISPs also don't have to pay those websites for the right to ‘transmit’ them, but ISPs have argued that they should be able to demand fees from websites.”

Kavanaugh's net neutrality dissent has earned some recent criticism. Senator Amy Klobuchar (D-MN) expressed "serious concerns" about the way in which Kavanaugh "went out of his way to dissent against net neutrality" in 2017. Senator Ed Markey (D-MA) said Kavanaugh's claim that the Obama-era FCC's net neutrality rules were unconstitutional shows "whose side Kavanaugh is really on." "A free and open internet is the greatest platform for expression of First Amendment rights," the lawmaker tweeted.

Surveillance

Judge Kavanaugh has also weighed in on the issue of government surveillance of communication networks and technologies. In November 2015, Kavanaugh was part of a unanimous decision when the D.C. Circuit denied a petition to rehear a challenge to the National Security Agency's bulk collection of telephone metadata. Kavanaugh was the only judge to issue a written statement. He said, “[t]he Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment."

Even if this form of surveillance constituted a search, it wouldn't be an "unreasonable" search, Kavanaugh wrote, and therefore it would be legal. He clarified:

The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient 'special need'—that is, a need beyond the normal need for law enforcement—that outweighs the intrusion on individual liberty. The Government's program for bulk collection of telephony metadata serves a critically important special need—preventing terrorist attacks on the United States. In my view, that critical national security need outweighs the impact on privacy occasioned by this program.

“Kavanaugh has shown again and again that he will side with Big Brother and big business ahead of the liberty of individual Americans. His decisions on mass surveillance and warrantless tracking of Americans’ every move are out of step with both the Fourth Amendment and the Court’s recognition that digital devices are different.” -- Sen. Ron Wyden (D-OR)

He had a more mixed record in a case debating whether authorities needed a warrant to place a GPS tracker on a suspect’s car (United States v. Jones). On one hand, he and other Republican judges said the suspect had no reasonable expectation of privacy in his public movements. But Kavanaugh separately said the government might have violated the suspect's property rights by tampering with his vehicle — an argument that Justice Antonin Scalia later cited in ruling that authorities indeed need a warrant.

Derek Hawkins, writing for the Washington Post, said, “Those opinions could put Kavanaugh at odds with a majority on the court that has recognized broader Fourth Amendment protections as surveillance tools have advanced.”

Kavanaugh could be a “potential vote for retrenchment on privacy and the Fourth Amendment,” said Albert Gidari, director of privacy at the Stanford Center for Internet and Society. “In short,” he added, “the privacy community isn't having cocktails over this one.”

What's Next

Judge Kavanaugh’s positions on both surveillance and net neutrality have many senators concerned.

Kavanaugh may have difficulty gaining the vote of a skeptical Senator Rand Paul (R-KY) over the government’s surveillance powers. Sen. Paul has long been against U.S. spy agencies' sweeping collection of data.

However, two centrist Republican Senators, who may hold the key to Kavanaugh's confirmation, struck a different tone. Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), who both voted for Kavanaugh's nomination to the D.C. Circuit Court in 2006, signaled a measure of comfort with his nomination.

Republicans need a simple Senate majority to confirm Kavanaugh. They currently control just 50 votes while Sen. John McCain (R-AZ) is out recovering from brain cancer, meaning a defection by just one Republican senator could throw the nomination into doubt.

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Introducing Judge Brett Kavanaugh: Siding with Big Business and Big Brother

Kavanaugh v. Chevron

Industry First Amendment Free Speech Rights

Net Neutrality

Surveillance

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