Trump’s Supreme Court Nominee Is a Major Net Neutrality Opponent

Judge Brett Kavanaugh argued that the regulations violated the First Amendment rights of ISPs.

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Jul 9 2018, 4:47pm

Judge Kavanaugh speaking at a Heritage Foundation event. Image: Screengrab/CSPAN

Update: This story has been updated after President Trump's nomination.

President Donald Trump has nominated federal Judge Brett Kavanaugh to the Supreme Court, a conservative stalwart and a major opponent of net neutrality.

Along with having a record of siding with anti-abortion and anti-contraception groups, Kavanaugh, who sits on the U.S. Court of Appeals for the DC Circuit, also recently argued that net neutrality rules were unconstitutional because the violated the free speech rights of ISPs.

“Just like cable operators, Internet service providers deliver content to consumers,” Kavanaugh wrote in a 2017 dissent on an appeal to have the court reconsider federal net neutrality protections. “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.”

In December, the Federal Communications Commission overturned federal net neutrality protections, which prohibited ISPs from blocking, throttling, or charging more for access to certain websites. After the rules were originally enacted in 2015, Big Telecom filed a petition to the DC Court of Appeals, arguing that the rules were unjust.

In 2016, that court ruled to uphold net neutrality protections. But because not all of the judges were present when that ruling was made, the major ISPs behind the petition pushed for another hearing later that year. In the court’s decision on that request—they voted no, they wouldn’t reconsider the petition—Kavanaugh filed a dissent, arguing that the net neutrality rules were unconstitutional and comparing it to the rights of cable companies to not be forced to air certain programming under the First Amendment.

Ultimately, Kavanaugh was outnumbered. But he clearly demonstrated his disapproval for federal net neutrality protections—cause for concern for net neutrality proponents seeking to re-establish the rules through multiple venues, including the courts.

Though it’s impossible to predict whether Trump's nominee will get approved by the Senate, Kavanaugh was a likely choice. He’s a Yale Law School graduate, clerked for Justice Anthony Kennedy, whom he would be replacing if confirmed, and worked with former independent counsel Ken Starr during the investigation into President Bill Clinton that led to Clinton’s impeachment. If he ends up winning the approval of even more moderate GOP Senators, it may just be another fight for net neutrality proponents to consider.

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