Jul 31, 2018

Judge Kavanaugh Is Right: ISPs Are Speakers, Too

Brent Skorup Senior Research Fellow

Supreme Court nominee Judge Brett Kavanaugh has received, and will continue to receive, an enormous amount of scrutiny concerning his judicial record in anticipation of his upcoming Senate confirmation vote. And so he should; our republic is strengthened by the critical examination of powerful figures, regardless of who they are. But in at least one area of the law, observers should give Judge Kavanaugh credit where it is due: he is absolutely right about the relationship between net neutrality regulations and the First Amendment. His 2017 opinion on the matter highlighted why net neutrality regulation is ill-suited for American law.

The First Amendment protects the editorial discretion of anyone who curates and distributes speech, including Internet Service Providers (ISPs). ISP operators choose to filter out suspicious websites, spam, illegal content, and at times, offensive and adult content. By doing so, they are engaging in what is called “substantive editing”—a practice protected by the First Amendment. Furthermore, even the ISP operators who currently do not engage in substantive editing do not lose their First Amendment right to do so at a later time.

This right is not merely protected by the First Amendment; ISP content filtering is expressly encouraged in current federal law. Section 230 of the Communications Decency Act allows ISPs to restrict access to material that the ISP operator "considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." By doing so, Congress recognized that ISPs have an editorial right to curate the content that they offer to customers.

Net neutrality laws purport to take away this discretion and regulate what ISPs may block or filter. They do so based on the claim that ISPs are “common carriers” and thus subject to government approval as to how internet is provided to subscribers. This ignores the many differences between ISPs and common carriers. More fundamentally, however, net neutrality regulations cannot take away First Amendment rights merely by labelling an entity a “common carrier.” Such rights do not depend on regulatory classification.

Judge Kavanaugh highlighted this constitutional principle in a dissent from his Court’s 2017 decision not to rehear United States Telecom Ass'n v. FCC, a lawsuit about whether the 2015 net neutrality regulations were legal. He wrote that “under the Supreme Court’s precedents applying the First Amendment, the net neutrality rule violates the First Amendment.” His dissent did not attract a majority to rehear the case, but it did compel the two judges who first upheld the 2015 rules to explain why they believed the rules were constitutional. These statements revealed how limited the Internet regulations are. In fact, those judges agreed with Kavanaugh’s point and wrote that “an ISP remains ‘free to offer ‘edited’ services’ without becoming subject to the” 2015 regulations. In other words the 2015 net neutrality rules are, as one net neutrality supporter put it, “essentially voluntary.”

This issue will stay relevant long after the FCC’s decision to reverse the Obama-era net neutrality rules. The many pending state net neutrality bills show that the repeal of federal regulations does not mean that the First Amendment freedoms of ISPs are now safe. Senators will likely press Kavanaugh on this opinion during his confirmation. Regulation activists dislike his net neutrality legal reasoning because it would limit government power, but his First Amendment views protect free speech interests and are, fortunately, orthodox among judges.

Photo credit: J Scott Applewhite/AP/Shutterstock

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