Ken White at Popehat has a detailed breakdown of important decisions written by longtime circuit court judge Brett Kavanaugh. The point being, not to advocate but to explore for the purpose of summarizing where a Justice Kavanaugh is likely to come down on future First Amendment cases.
I found them all interesting but one, in particular, caught my attention and it relates to our next GrokPoll (which will be published
this evening Thursday.)
Judge Brett Kavanaugh has ruled that Net Neutrality violates the First Amendment.
He’s written in numerous opinions that the government can’t restrict the “editorial discretion” of internet service providers or content networks absent a showing that a particular provider “possesses market power in a relevant geographic market.” Put another way, he believes that the First Amendment prohibits the government from telling ISPs and other communications providers that they have to carry competitor’s content unless the government’s made a showing that they have an anti-competitive level of power in a market. He’s blunt about it. “[T]he net neutrality rule violates the First Amendment to the U.S. Constitution,” he wrote in one dissent, …
… “[T]he FCC cannot tell Comcast how to exercise its editorial discretion about what networks to carry any more than the Government can tell Amazon or Politics and Prose or Barnes & Noble what books to sell; or tell the Wall Street Journal or Politico or the Drudge Report what columns to carry; or tell the MLB Network or ESPN or CBS what games to show; or tell SCOTUSblog or How Appealing or The Volokh Conspiracy what legal briefs to feature.”
I’m happy to add this to my quiver of #TheRealResistance Arrows in the fight for both free speech and in opposition to Net Neutrality. Because he’s right.
The government has no more right to force content providers to provide specific content than it does to script the words of activists in public spaces expressing their discontent with the government.
That’s not all he covers as noted above. The post is long and reaches into many areas so if you’re wonky about Free Speech; then it’s your kind of read. If not, suffice to say Kavanaugh is solid on free speech and should continue The Court’s protection trajectory of the First Amendment.