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

An exacting look at Judge Brett Kavanaugh's 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 DC 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. To rule in favor of striking down the FCC’s rule, Judge Kavanaugh 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, Judge 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. He framed the ISPs’ interest in being permitted to engage in online content discrimination as their First Amendment right to exercise “editorial discretion.”

Kavanaugh’s position in United States Telecom would have a devastating effect if it was embraced by the Supreme Court. It chooses the free speech interests of powerful corporations over those of the public. If Judge 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. 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?