July 12, 2018 / 8:08 PM / 8 months ago

Breakingviews - Holding: Brett Kavanaugh means business on speech

NEW YORK (Reuters Breakingviews) - When it comes to free speech, Brett Kavanaugh is all business. President Donald Trump’s pick for the U.S. Supreme Court has favored allowing public companies to cut back on disclosure, internet service providers to discriminate against certain content and cable companies to block rivals’ programming. It’s a First Amendment message that investors and consumers probably won’t want to hear.

The U.S. Supreme Court is seen after the court revived Ohio's contentious policy of purging infrequent voters from its registration rolls, overturning a lower court ruling that Ohio's policy violated the National Voter Registration Act, in Washington, U.S., June 11, 2018. REUTERS/Erin Schaff

As a federal Court of Appeals judge in Washington, D.C., Kavanaugh has been a strong defender of speech rights generally. Yet the Yale Law School graduate’s outspoken support for corporate speech is extraordinary, especially for an advocate of interpreting the Constitution according to its drafters’ intent.

Companies other than newspapers and the like had essentially no First Amendment rights in 1789, and their speech was heavily regulated over the following two centuries. The notion of commercial speech didn’t even exist until 1976, when the Supreme Court ruled that pharmacists had a First Amendment right to advertise drug prices. Two years later, the justices said corporations also had a right to make contributions to ballot-initiative campaigns. And in 1980, the court first articulated a test for acceptable limits on commercial expression.

The origin of Kavanaugh’s views on corporate speech isn’t entirely clear, but they closely resemble those of two powerful mentors. He clerked for retiring Justice Anthony Kennedy, a First Amendment advocate who wrote the 2010 Citizens United opinion upholding corporations’ rights to spend freely to influence political campaigns. He has also called former Justice Antonin Scalia, another staunch defender of expressive freedoms who wrote a concurrence in Citizens United, “a hero and a role model.”

The judge first roiled First Amendment law in 2010 by dissenting from an appeals court decision that upheld a ban on exclusive contracts between cable companies and affiliated creators and packagers of programs, like E! or MLB Network. The Federal Communications Commission said the ban was “necessary” to ensure that independent programmers had access to monopoly cable systems. The appeals court majority agreed.

But Kavanaugh stressed a free-speech issue: Programmers were like newspapers and Cablevision and its ilk were like newsstands, each with “editorial control” over what they created or distributed. Questioning whether cable systems were still monopolies, he insisted limits on that control had to clear an almost impossibly lofty bar under the First Amendment. This one couldn’t, he concluded. He reprised that view three years later, writing in a similar case that the FCC “cannot tell Comcast how to exercise its editorial discretion about what networks to carry any more than the government can tell Amazon or Politics and Prose or Barnes & Noble what books to sell.”

In 2014, Kavanaugh rattled convention again by challenging corporate disclosure rules. He joined an appeals-court majority in upholding a requirement that meat from China be labeled “Made in China,” agreeing that the government had met the legal standard of showing it had a “substantial” interest in the rule. In a separate opinion, though, Kavanaugh defined “substantial” in extraordinarily narrow terms. He suggested that only interests rooted in “history and tradition,” as was the case here, would pass muster. A rule without that sort of pedigree - a requirement that public companies disclose their political contributions, for example - might qualify as unconstitutionally compelled speech.

The judge’s best known First Amendment opinion may be a dissent to his court’s refusal to reconsider its approval of net neutrality rules. Kavanaugh argued that the FCC lacked Congress’ permission to treat internet service providers as common carriers, requiring them to provide equal access to all websites and the like. His far more controversial objection, though, was that internet providers, like cable companies, had the First Amendment right to handle data however they pleased. Forcing them not to discriminate was as unconstitutional as regulating “the editorial decisions of Facebook and Google, of MSNBC and Fox,” he wrote.

The FCC has since repealed its net neutrality rules, but any attempt to revive them could fail if, assuming Kavanaugh is confirmed, he convinces the Supreme Court to adopt his unusual take on corporate speech. Potentially more troubling is how a Justice Kavanaugh might squelch corporate disclosure.

The appeals court in Washington has already started to chip away at Securities and Exchange Commission rules, striking down in 2014 the so-called “conflict minerals” regulation, which forced companies to report whether they used any minerals from the war-torn Democratic Republic of Congo in their products. The rule was probably unworkable in any event, but the court’s novel reasoning was that it violated companies’ First Amendment right not to denounce their own products.

Kavanaugh’s opinion in the Chinese meat case offers a clear way to expand that logic. Any disclosure requirement that lacked “history or tradition” might be construed as violating companies’ right not to speak. Plausible examples aren’t hard to imagine: rules on employee training, pay, the percentage of minority or female workers, or even new measurements of financial health.

The law is already moving in Kavanaugh’s direction. Almost half of all challenges based on the First Amendment now benefit corporations or trade groups, according to a study by Harvard Law professor John Coates. Since the Supreme Court last month struck down requirements that non-union government workers pay some dues, Justice Elena Kagan’s accusation that conservatives “are weaponizing the First Amendment” has gained traction. On a court leaning decidedly to the right, a Justice Kavanaugh could be counted on to lead the charge.


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