Tuesday, July 10, 2018

SCOTUS nominee Kavanaugh seems to be good on First Amendment issues (net neutrality seems to be a problem)



Ken White, on a site called Popehat, has some detailed analysis of the views of Supreme Court nominee Brett Kavanaugh on free speech and first amendment issues. 

  The writer warns, “you’re going to hate this post”.  Rick Sincere of Charlottesville VA and Bearing Drift shared the post today.

In short, Kavanaugh is pretty good about free speech, for business or political purposes.  He tends to disfavor SLAPP suits based on facetious defamation claims, although there are procedural issues in the way in the case of various state laws when reviewed by the federal circuit, where he serves.  It should seem expected that he would in general favor corporate and political speech, since he has served in a circuit that specializes in technology, patent and trademark.  He also doesn't object to the political "weaponizing" of speech against intersectional groups. 


There is a lot of concern, however, in that he has said that the Obama net neutrality rules violated the First Amendment, except in cases where carriers don’t have competition. So he probably would not be supportive of legal challenges to Ajit Pai’s removing the rules from the FCC; the details about this go on another blog. He does seem to regard telecoms as content providers rather than utilities, and that view seems vulnerable.

Kavanaugh would not find any legal basis for interfering with platforms’ (whether social media or conventional hosting and domain name registration) own terms of service or acceptable use policies. That has gotten more attention after some extreme right-wing websites were cut off after Charlottesville. This could become more important if hosts come under more pressure especially from the Left to regulate even “indirect” hate speech.

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