Justice Kavanaugh's US Telecom Dissent Could Govern Platform Speech

Slightly less than a month ago, in NetChoice v. Paxton, the Supreme Court restored a preliminary injunction that prevented Texas's social media common carriage law, HB20, from taking effect. I already wrote about Justice Alito's dissent in that case, and as I noted back then, the Supreme Court's 5-4 majority did not explain its reasoning. This time, I'm going to take a stab at guessing that reasoning, and my guess involves then-Judge Kavanaugh's dissent in US Telecom v. FCC (2017).

Justice Kavanaugh, a member of the NetChoice majority, possibly showed his cards years earlier while dissenting from the denial of en banc review as a D.C. Circuit Judge in US Telecom. In that case, Kavanaugh explained his belief that the First Amendment bars the imposition of "net neutrality" regulations, including prohibitions on blocking, throttling, and paid-prioritization, on broadband providers. Specifically, Kavanaugh relied on Turner Broadcasting System v. FCC (1997), which he interpreted as ruling that First Amendment protections for editorial discretion apply to modern communications services, even though Turner addressed cable television rather than broadband. Kavanaugh would have applied the editorial protection afforded to cable providers in Turner to broadband providers.

Here, of course, we deal with Internet service providers, not cable television operators. But Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers. 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. Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.

Then, and most relevant to guessing the Court's possible reasoning in NetChoice, Kavanaugh argued that, in order to overcome the "intermediate scrutiny" protection the First Amendment affords to editorial discretion, the government needed to make a credible finding that broadband providers had market power. The FCC's order adopting the net neutrality regulations did not do that. To show the consequences of that omission, Kavanaugh argued that, if that approach were adopted, Congress could impose similar regulations on Internet platforms such as Facebook, Google/YouTube, and Twitter, and even traditional publishers like the New York Times, without obstacle.

If market power need not be shown, the Government could regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter. Can the Government really force Facebook and Google and all of those other entities to operate as common carriers? Can the Government really impose forced-carriage or equal-access obligations on YouTube and Twitter? If the Government’s theory in this case were accepted, then the answers would be yes. After all, if the Government could force Internet service providers to carry unwanted content even absent a showing of market power, then it could do the same to all those other entities as well. There is no principled distinction between this case and those hypothetical cases.

The underlying sentiment of Kavanaugh's "slippery slope" argument above is that there is something wrong with common carriage regulation of Internet platforms and traditional publishers. And the Court long ago ruled that something is indeed wrong with common carriage style regulation of newspapers in Miami Herald Publishing Co. v. Tornillo (1974).

Perhaps the Court's majority in NetChoice reached the same conclusion as Kavanaugh in US Telecom, relying on cases like Turner and Tornillo as an indication that NetChoice is likely to succeed on the merits of its case, which is one of the factors for granting a preliminary injunction.

For now, we do not know the Court's reasoning, but Kavanaugh's opinion in US Telecom is a good place to start guessing. And we also do not know, assuming the majority embraced Kavanaugh's reasoning, whether a majority of the Justices would do the same in the context of common carriage regulation of broadband service. As Justice Alito explained in his NetChoice dissent, the Court has taken different First Amendment approaches for different technologies.

But we do know that, as NetChoice continues to move through the courts, it will have broad implications on communications and First Amendment law.

First Amendment First Principles

In its June 17 decision in Manhattan Community Access Corporation v. Halleck, the Supreme Court held, in another 5-4 split, that the public access channels on Time Warner's cable system in Manhattan do not constitute a "public forum" for free speech purposes. Therefore, the Manhattan Community Access Corporation, known as MNN, a private nonprofit corporation, did not violate the First Amendment when it denied access to the channels, based on the content of the programming, to two program producers. This is true even though New York City selected MNN to operate the public access channels on Time Warner's system and the city regulated various aspects of MNN's operation of the channels.

In an age when many people think – or at least proclaim – that they have a "right" under the First Amendment to say anything, anywhere, anytime, Justice Brett Kavanaugh's opinion for the majority explicating fundamental principles of First Amendment jurisprudence should be required reading. Surely, it's rare for a day to pass, in this age of overheated politics and overblown political correctness, without someone expressing outrage because their right to "free speech" supposedly has been violated. Maybe they have been banned from Facebook or Twitter, or just had a post removed. Or had a video removed from YouTube. Or had a proffered program rejected by the local public access channel. 

Okay. I'll grant that the disappointed individuals or entities may be upset. And they may even have good cause to be upset, depending on the reasons given for the denial of their wish to speak in their chosen venue.

But that doesn't mean they have a valid First Amendment free speech claim. Indeed, Justice Kavanaugh's opinion does a superb job in explaining why they don't. Here I am going to let the opinion do most of the work by quoting a few key parts expounding fundamental First Amendment principles that transcend the particulars of the MNN case:

"The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, this Court applies what is known as the state-action doctrine. Under that doctrine, as relevant here, a private entity may be considered a state actor when it exercises a function 'traditionally exclusively reserved to the State.'"

"The text and original meaning of those [First and Fourteenth] Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech."

"By enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protects a robust sphere of individual liberty."

"Under the Court’s cases, a private entity may qualify as a state actor when it exercises 'powers traditionally exclusively reserved to the State.' Jackson, 419 U. S., at 352. It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function."

"[W]hen a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum."

Now, the dissent vigorously contested Justice Kavanaugh's conclusion that MNN is a private entity and not a state actor. Given the factual context – MNN's designation by New York to operate the public access channels that the city obtained under a New York state law and the government's regulation of certain aspects of their operation – the contention that MNN's programming decisions amounted to government action was not frivolous, although I think Justice Kavanaugh has the better of the argument. But I don't want to delve more deeply into the "state action" question here.

Rather I want to emphasize that the next time you hear someone complain that their First Amendment rights have been trampled upon – and I guarantee you it will be soon – before jumping to their defense, consider the parameters within which the First Amendment operates.

Remember Justice Kavanaugh's admonition: "The text and original meaning of those [First and Fourteenth] Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech."

This is what I call a foundational first principle.