Leading Democrats in Congress continued their defense of net neutrality ahead of the midterms on Tuesday, this time with Republican Supreme Court nominee Judge Brett Kavanaugh in their crosshairs.
The Democrats said Kavanaugh’s dissenting opinion in a key 2017 case before the DC Circuit Court of Appeals indicates that President Trump’s nominee would oppose popular net neutrality regulations and prioritize the “free speech rights” of powerful internet service providers, such as AT&T and Comcast, over the rights of American consumers if confirmed to serve on the Supreme Court.
The telecom industry brought the case against the Federal Communications Commission (FCC) after the FCC established net neutrality rules prohibiting broadband companies from discriminating against web content. In his dissent, Kavanaugh wrote that the FCC rule prevents internet service providers from “exercising editorial control over the content they transmit to consumers,” an apparent violation of a corporation’s First Amendment rights.
Sen. Ed Markey (D-Massachusetts), who helped pass a resolution to restore the FCC’s net neutrality rules in the Senate, told reporters on Tuesday that Kavanaugh thinks “fake First Amendment rights of big companies” are more important that the “real First Amendment rights” of internet users.
“Just because someone uses a soapbox doesn’t mean soapboxes have First Amendment rights,” Markey said.
Markey added net neutrality to a list of hot-button issues that he said should make moderate lawmakers wary of confirming Kavanaugh, including reproductive rights and environmental protection.
After President Trump installed a Republican majority on the commission last year, the FCC began dismantling the 2015 net neutrality rules along with other Obama-era consumer protections. An order rolling back the rules and placing consumer oversight of internet service providers back in the hands of the Federal Trade Commission became effective in June, but as Truthout has reported, net neutrality could still survive the Trump administration.
Polls show that clear majorities of voters in both parties are wary of their internet service providers, and support strong net neutrality rules despite the Trump administration’s rollback. Democrats in Congress have aggressively pushed back against Republican attacks on net neutrality and online privacy protections in an effort to tap into the progressive energy around the issue and drive a wedge between the GOP and moderate voters ahead of the midterm elections.
Now Democrats are leveraging public opinion about internet freedom against Kavanaugh, a conservative who has a record of siding with big business and the fossil fuel industry. Net neutrality has been defined by a series of legal rulings, and a conservative majority on the Supreme Court could threaten net neutrality protections for decades.
A coalition of progressive groups, including Color of Change and NARAL Pro-Choice America, recently launched a campaign to pressure the two dozen Senate Democrats who remain undecided on Kavanagh to oppose his nomination. Markey said he would support delaying a vote on Kavanaugh’s confirmation until after the midterm elections.
“President Trump’s nominee for the Supreme Court believes that big internet companies should be able to control your internet experiences how they see fit,” said Gigi Sohn, a distinguished fellow at the Georgetown Law Institute for Technology Law and Policy who helped write the Obama-era net neutrality rules at the FCC.
Under Kavanaugh’s judicial philosophy, Sohn said, companies that hook homes and businesses into the internet would have the same First Amendment rights as newspaper publishers, and the First Amendment rights of the entrepreneurs and web users who create the internet do not justify government regulation of an industry. The issue is bound to come up in Kavanaugh’s confirmation hearings before the Senate.
Over a dozen Democratic state attorneys general are also challenging the FCC’s decision to ditch its net neutrality rules in federal court. In a brief filed in support of the lawsuit this week, Markey and other Democrats point out that they helped pass the Telecommunications Act of 1996, a major overhaul of federal communications statute that was written shortly before the internet evolved into a fixture of everyday life.
The Democrats argue that Congress intended for the FCC to regulate the internet as a telecommunications service that everyone needs to use, rather than a luxury “information service,” as it has been branded by Republicans and their backers in the industry. The 2017 FCC order killing the rules is “based entirely on misuse of language” and “divorced from the practical realities that supported the FCC’s 2015 classification decision,” the lawmakers argue in their brief.
In May, Senate Democrats were able to peel off a few Republican votes and pass a resolution to restore net neutrality rules at the FCC, but the legislation has stalled in the House, where Republicans enjoy a rock-solid majority. However, a recent survey by Republican pollsters shows that opposing net neutrality protections could hurt GOP candidates running in competitive districts this fall, and House Democrats say they are still fighting to pass a resolution to restore the rules before the end of the year.
Sohn said net neutrality supporters need about 40 more votes to pass the resolution in the House, and “advocates are optimistic that we can get there.”
Correction: Kavanaugh wrote his dissenting opinion for the US Court of Appeals for the DC Circuit, not a federal district court, as this article originally stated.