By: Lisa Hoover

Like a good portion of the country, I have been doing my best to catch bits and pieces of the Senate hearings regarding the confirmation of Brett Kavanaugh, President Trump’s nominee to the US Supreme Court. When I sat down to write this blog I wondered, what impact might Kavanaugh’s confirmation have on intellectual freedom issues? I’d like to share with you a summary of some cases that may shed light on Kavanaugh’s views. I’ll leave you to your own opinion on these cases and what they might mean for the future.

United States v. Telecom Association v. The Federal Communications Commission

In the Washington DC Court of Appeals decision in United States v. Telecom Association v. The Federal Communications Commission, Kavanaugh dissented. His dissent, starting on page 73 of the opinion, argues that because the FCC’s 2015 net neutrality rule was

“prohibiting Internet service providers from exercising editorial control over the content they transmit to consumers” it violates the First Amendment. He cites Turner Broadcasting System v. FCC, which “bars the government from restricting the editorial discretion of Internet service providers.”

He does, however, limit this holding somewhat by citing the requirement in Turner that Internet Service Providers (ISPs) can be restricted where there is a showing “that an Internet service provider possess market power in a relevant geographic market,” and that there was no such showing here. This, arguably, leaves the door open for him to make a different decision in a case with different facts. (See pages 73-74 of the opinion.)

Klayman v. Obama

Kavanaugh voted in this case to “uphold the National Security Agency’s (NSA’s) bulk collection of Americans’ call records as constitutional,” according to the ACLU. Kavanaugh argued that the NSA program “is entirely consistent with the Fourth Amendment” because it is “not considered a search under the Fourth Amendment” under the Smith v. Maryland case. Even if it was a search, he argues, it

“readily qualifies as reasonable” because the Fourth Amendment “allows governmental searches and seizures without individualized suspicion when the government demonstrates a ‘special need’” and that this program meets the special need of “preventing terrorist attacks on the United States.”

(See the opinion.)

What about Citizens United?

The Citizens United v. Federal Election Commission decision was a controversial United States Supreme Court decision in 2010 which held that political spending is a form of speech protected by the First Amendment, and therefore the government may not keep corporations from spending money to support/oppose a candidate in an election.

Kavanaugh was not involved in that case, but New York Times commentator Adam Liptak argues that he is likely to take a similar position due to past statements in support of the principle that

“the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” (Liptak, 2018)

See his analysis here.

Other cases:

For other case opinions by Kavanaugh you can see a search of the opinions of the US Court of Appeals for the DC Circuit here.

References:

American Civil Liberties Union. (2018). ACLU Report on Judge Brett M. Kavanaugh. ACLU. Retrieved from https://www.aclu.org/report/aclu-report-judge-brett-m-kavanaugh September 7, 2018.

Liptak, A. (2018) How to tell where Brett Kavanaugh Stands on Citizens United. The New York Times. Retrieved from https://www.nytimes.com/2018/07/23/us/politics/brett-kavanaugh-citizens-united-campaign-finance.html on September 7, 2018.

 

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Lisa Hoover is a Public Services Librarian at Clarkson University and an Adjunct Professor in criminal justice at SUNY Canton. In addition to her MLS, Lisa holds a JD and an MA in political science. She began her career as an editor and then manager for a local news organization, adjunct teaching in her “spare time.” She teaches courses in criminal procedure, criminal law and constitutional law. She is passionate about 1st Amendment issues. She recently began her career as a librarian, starting at Clarkson University in June 2017 teaching information literacy sessions and offering reference services. Lisa and her husband Lee live in Norwood, New York with their cats Hercules, Pandora, and Nyx and pug-mix Alexstrasza (Alex). Find her on Twitter @LisaHoover01.