Supreme Court Nominee Kavanaugh Defends Net Neutrality Dissent Against Klobuchar Criticism
Supreme Court nominee Brett Kavanaugh again defended at his confirmation hearing Thursday night his dissent in the U.S. Court of Appeal for the D.C. Circuit's 2017 en banc affirmation of the now-rescinded 2015 net neutrality rules in USTelecom v. FCC…
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amid criticism from Sen. Amy Klobuchar, D-Minn. She also queried Kavanaugh on his USTelecom dissent during an earlier confirmation session. He faced questions about his views on Chevron deference by courts to agency expertise and on tech-based privacy issues (see 1809050061 and 1809060048). Kavanaugh “went beyond the bounds” of USTelecom and FCC arguments, finding the First Amendment “protects ISPs' right to exercise editorial discretion,” Klobuchar said. Kavanaugh believes the First Amendment argument “seemed on point” for his dissent because it was a major factor in the Supreme Court's 1994 Turner Broadcasting and was in amicus briefs supporting USTelecom. Turner's First Amendment approach “seemed to apply very closely” and has been successfully applied to cases “in other contexts,” Kavanaugh said. “I pointed out” in the dissent that “if a company has market power under Turner then the government does have the authority to regulate, but if a company doesn't have market power,” Turner says that authority doesn't exist. “There's First Amendment rights of individuals to use the internet and express their own views,” Klobuchar said. “You basically said that the companies have those First Amendment rights,” which runs counter to policymakers' view “that unless you have some rules of the road in place, it's going to make it very hard for individuals and small businesses” to maintain internet access, she said. Demand Progress used Kavanaugh's dissent and his Senate Judiciary Committee testimony on the ruling in a Thursday night fundraising email. “Kavanaugh tried to block net neutrality when he was on the D.C. Circuit Court, but he was overruled by the other judges,” Demand Progress said. “On the Supreme Court, he and the other four right-wing justices would have the final word.” If two of the three Senate Republicans who joined Senate Democrats in May to pass a Congressional Review Act resolution of disapproval aimed at restoring the 2015 rules (see 1805160064) “join every Democrat in voting no on Kavanaugh, his nomination is finished,” Demand Progress said.