Supreme Court nominee Brett Kavanaugh is bad for our country. One of the many alarming parts of his ultra-conservative record is a dissent he wrote last year after his D.C. Circuit Court upheld the Obama-era FCC’s net neutrality rules. Kavanaugh argued that net neutrality protections would impinge upon Internet Service Providers’ (ISPs)—like AT&T, Comcast, Verizon—First Amendment rights. Yup. That old Republican chestnut.* In his dissent, Kavanaugh wrote that “the net neutrality rule is unlawful and must be vacated,” because of two things: Justice Scalia said something, and the First Amendment rights of big telecoms.
The first part of the argument is that because Congress did not “clearly” authorize the FCC to create net neutrality protections, it forced the FCC to rely on the 1934 Communications Act—which was amended and regulations pulled away in 1996—as its foundation for the net neutrality regulations. This was not sufficiently “clear” for Kavanaugh.
Then, Kavanaugh gave his second reason. Here’s the full text:
Second and in the alternative, the net neutrality rule violates the First Amendment to the U.S. Constitution. Under the Supreme Court’s landmark decisions in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), and Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997), 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.
Judge Srinivasan, joined by Judge Tatel, wrote a critique of their colleague’s “dissent” on the same ruling. To Kavanaugh’s point that net neutrality protections were “unlawful” as the FCC didn’t have congressional direction to do as much, Srinivasan points to National Cable & Telecommunications Association v. Brand X Internet Services.
Our dissenting colleague nonetheless contends that Brand X poses no obstacle to invalidating the FCC’s Order under the major rules doctrine. His argument runs as follows. The question under the major rules doctrine, he observes, is whether Congress has “clearly authorized the FCC to subject Internet service providers to the range of burdensome common-carrier regulations associated with telecommunications services.” But the Brand X Court, he then notes, found the statute “ambiguous about whether Internet service was an information service or a telecommunications service.” In his view, “Brand X’s finding of ambiguity by definition means that Congress has not clearly authorized the FCC to issue the net neutrality rule.”
That analysis rests on a false equivalence: it incorrectly equates two distinct species of ambiguity. It is one thing to ask whether “Internet service is clearly a telecommunications service under the statute.” Id. at 16. It is quite another thing to ask whether Congress has “clearly authorized the FCC to classify Internet service as a telecommunications service,” which is the relevant question under our colleague’s understanding of the major rules doctrine. Id. The former question asks whether the statute itself clearly classifies ISPs as telecommunications providers. The latter asks whether the statute clearly authorizes the agency to classify ISPs as telecommunications providers.
They point to the fact that in Justice Scalia’s dissent of Brand X, he sort of freaked out about how “ambiguous” the majority’s decision was, saying that the court was “compelling” the FCC to brand ISPs as telecommunications providers. What Kavanaugh does in his opinion is re-litigate Brand X and pretend that Scalia’s dissenting opinion was the Supreme Court’s opinion—it wasn’t. And in the more pressing opinion of Kavanaugh’s First Amendment for corporations argument:
Our dissenting colleague separately argues that the First Amendment poses an independent bar to the FCC’s Order. The Order, he submits, infringes the First Amendment rights of broadband ISPs. Specifically, he understands Supreme Court precedent to recognize a First Amendment entitlement on the part of an ISP to block its subscribers from accessing certain internet content based on the ISP’s own preferences, even if the ISP has held itself out as offering its customers an indiscriminate pathway to internet content of their own—not the ISP’s—choosing.
Under that view, an ISP, for instance, could hold itself out to consumers as affording them neutral, indiscriminate access to all websites, but then, once they subscribe, materially degrade their ability to use Netflix for watching video—or even prevent their access to Netflix altogether—in an effort to steer customers to the ISP’s own competing video-streaming service. Alternatively, an ISP, again having held itself out as affording its customers an unfiltered conduit to internet content, could block them from accessing (or significantly delay their ability to load) the Wall Street Journal’s or the New York Times’s website because of a disagreement with the views expressed on one or the other site.
An ISP has no First Amendment right to engage in those kinds of practices. No Supreme Court decision suggests otherwise. Indeed, although the two dissenting FCC Commissioners objected to the agency’s adoption of the rule on multiple grounds, neither suggested the rule poses any First Amendment issue. Similarly, the principal parties challenging the Order in this court, who collectively represent virtually every broadband provider—including all of the major ISPs—bring no First Amendment challenge to the rule. The sole party to raise any claim under the First Amendment is Alamo Broadband Inc., which describes itself as “a small broadband provider” serving some 1,000 customers in Texas, and which is joined in its claim by an individual named Daniel Berninger. Pet’rs’ Joint Proposed Briefing Format & Sched.
The Republican Party is a plutocracy.
*Read about Texas Republican Lamar Smith’s attacks on science while fighting for ExxonMobil’s “First Amendment” rights here.