This story is part of a series examining the record and views of Judge Kavanaugh, who was nominated to the Supreme Court on July 9.
If Judge Kavanaugh is confirmed to the Supreme Court, he will replace one of the most pro-First Amendment justices in history. In areas ranging from campaign finance restrictions to false speech about military honors to compelled speech about abortion, Justice Kennedy was never reluctant to strike down laws that he found to infringe on free speech.
His former law clerk and would-be successor has a more enigmatic record. Since Kavanaugh’s nomination, various conservative commentators have touted his “principled” stance on the First Amendment and claimed he is “very protective of free speech.” But others have found that same record “spotty” and “discouraging.”
For proponents of free speech, the truth may depend on what sort of “speech” is involved.
Kavanaugh has written opinions in about a dozen cases on the D.C. Circuit involving the freedom of speech and the freedom of the press. In a few of them, Kavanaugh adopted an aggressive, Kennedy-esque theory of the First Amendment and harnessed it for a narrow purpose: to repudiate regulations affecting the telecommunications industry. But in other areas of First Amendment doctrine—like campaign finance, libel law, and protesters’ rights—Kavanaugh was more minimalist and more willing to defer to government interests. Both approaches would be consequential if he brought them to the Supreme Court.
Free Speech and the FCC
Kavanaugh’s most ambitious First Amendment opinions came in three cases involving rules adopted by the Federal Communications Commission. In each of them, it was far from obvious that the rules regulated speech at all—yet Kavanaugh, writing only for himself in all three cases, found grave First Amendment concerns each time.
First, in the 2009 case Cablevision Systems v. FCC, the D.C. Circuit considered a ban on certain types of exclusive contracts between cable operators and affiliated cable networks. The FCC saw the ban as an economic regulation meant to foster competition in the cable industry, and the court upheld it. Kavanaugh dissented, calling the ban “a forced-sharing mandate” that stripped cable companies of their “editorial control”—and thus their free speech—by compelling them to share their content. Oddly, it was not even clear that Cablevision had raised a constitutional argument against the ban in the first place (the majority said it hadn’t). But Kavanaugh’s 29-page dissent (twice as long as the majority opinion) reads like a First Amendment hornbook: he begins with the amendment’s ratification in 1791, muses repeatedly on the nature of free speech, and concludes that he cannot “brush aside the vital First Amendment interests at stake here.”
Four years later, Kavanaugh again confronted a regulation of the cable industry, and he again seemed to go out of his way to find a First Amendment problem to attack. Agape Church v. FCC involved a regulation affecting the conversion of digital broadcast signals into analog format for customers with analog television sets. The court upheld the regulation, and Kavanaugh agreed—but he wrote a concurrence to address a prior version of the regulation that was no longer in effect. The old version had required cable companies to convert certain “must-carry” broadcast stations into analog format. Kavanaugh wrote separately to assert that that requirement, were it still in place, would violate the First Amendment rights of cable companies by restricting their “editorial discretion” over what stations to carry.
Cablevision and Agape Church laid the groundwork for one of the most noteworthy opinions Kavanaugh ever wrote on the D.C. Circuit: his dissent last year in the court’s major network neutrality case, United States Telecom Association v. FCC. In that case, the en banc court upheld the Obama-era net neutrality regulation that reclassified internet service providers as “common carriers” and barred them from blocking certain websites or slowing down connection speeds for disfavored content. Kavanaugh called the bundle of rules “one of the most consequential regulations ever issued by any executive or independent agency in the history of the United States”—and he didn’t mean that as a compliment.
Kavanaugh said the rules (which have since been repealed by the Trump administration) violated the free speech rights of internet service providers. Those companies, he said, are not merely common carriers that operate pipelines to which the government can guarantee neutral, equal access. Rather, the companies are “speakers and editors,” and the bits of data that run through their networks constitute bona fide speech. Just as newspapers have a right to favor certain viewpoints over others, Kavanaugh said, internet companies like Comcast and Time Warner have a First Amendment right to control what data flows through their networks and to give preferential treatment to data from favored content providers.
Kavanaugh’s robust defenses of the speech rights of cable and internet giants were never joined by any of his D.C. Circuit colleagues. But his theory likely would garner more votes on the Supreme Court, which has shown willingness in recent years to expand First Amendment principles to curtail economic regulations of corporations. In particular, if net neutrality ultimately makes it to the Supreme Court—which remains a distinct possibility—Kavanaugh would no doubt speak with a loud voice.
A More Minimalist Approach
Kavanaugh’s expansive view of the First Amendment in the telecommunications industry has not translated to more traditional areas of First Amendment jurisprudence. In those areas, Kavanaugh’s opinions are far more conventional than his novel declamations in Cablevision, Agape Church, and U.S. Telecom, and in a few instances, they show a tendency to pare down, not puff up, free speech rights.
In the area of campaign finance law, for instance, a handful of Kavanaugh opinions gives scant indication of whether, as a justice, he would follow in the footsteps of Kennedy, who famously struck down portions of the McCain-Feingold campaign finance law in Citizens United v. FEC. In 2010, just three months after Citizens United, Kavanaugh sat on a three-judge district court (a special panel convened for campaign-finance challenges), and he wrote an opinion upholding a different portion of McCain-Feingold. The case, Republican National Committee v. FEC, challenged the law’s limitations on “soft money” donations to political parties. Kavanaugh, citing a 2003 Supreme Court decision, said the limitations did not run afoul of the First Amendment—though along the way, he expressed some skepticism about the 2003 precedent.
The next year, in Bluman v. FEC, Kavanaugh considered yet another provision of McCain-Feingold: a ban on campaign contributions from non-U.S. citizens in American elections. Interpreting the provision narrowly, Kavanaugh wrote an opinion upholding it and was summarily affirmed by the Supreme Court. The single case in which Kavanaugh invalidated a campaign finance restriction on First Amendment grounds was Emily’s List v. FEC, in which he held that non-profit organizations have a First Amendment right to spend unlimited amounts in support of candidates.
In another key First Amendment area—libel law—Kavanaugh has written only one significant opinion. In 2015, in Abbas v. Foreign Policy Group, he found that it was not defamatory for Foreign Policy magazine to raise questions about potential corruption by the son of Palestinian leader Mahmoud Abbas. But in another, arguably more significant part of his opinion, Kavanaugh held that state laws known as Anti-SLAPP laws—which provide special protections to defendants who are sued for exercising free speech—do not apply in federal court. That holding broke with other federal courts that had invoked Anti-SLAPP laws, and it was a major blow for the media defense bar, which frequently relies on those laws to fight frivolous lawsuits.
Kavanaugh also seems not to be the biggest champion of the rights of protesters. In Mahoney v. Doe, an anti-abortion activist wanted to write chalk messages on the sidewalk in front of the White House. The court, citing a D.C. law prohibiting the defacement of public property, concluded that he had no right to do so. Kavanaugh wrote a short and dismissive concurrence to emphasize that “no one has a First Amendment right to deface government property.” He then went on—with no evident hyperbole—to liken a sidewalk chalk demonstration to spray-painting the Washington Monument and smashing the windows of a police car.
Finally, in an important 2014 case involving commercial speech, American Meat Institute v. Department of Agriculture, Kavanaugh charted a middle-ground position on the D.C. Circuit. The issue in the case was a federal regulation requiring meat packaging to display “country of origin” information. The meat industry challenged the regulation as violating the First Amendment rights of meat companies to be free from compelled speech. The en banc court upheld the regulation, with two conservative judges dissenting. Kavanaugh wrote a concurrence, saying he agreed the regulation should be upheld, but on arguably more narrow grounds than the majority opinion suggested.
He did not join his conservative colleagues in dissent, who sharply accused the court of kowtowing to regulatory interests and ignoring serious First Amendment problems. That critique likely sounded familiar to Kavanaugh—it was exactly the sort of accusation he himself made in the telecom cases.
