President Donald Trump will nominate the second Supreme Court Justice pick of his tenure on Monday night, and one of the top contenders is a major net neutrality opponent.
Trump has narrowed down his options to four federal judges: Brett Kavanaugh, Thomas Hardiman, Raymond Kethledge, and Amy Coney Barrett. 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 After the rules were originally enacted in 2015, Big Telecom filed a petition to the DC Court of Appeals, arguing that the rules were unjust.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. Butt 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 whom Trump will choose and whether that nominee will get approved by the Senate, Kavanaugh is certainly a front-runner. 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 being the top pick, it may just be another fight for net neutrality proponents to consider.
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