Judge Brett Kavanaugh, President Trump’s nominee for the Supreme Court, will have his Senate confirmation hearings next month. An exacting look at his judicial record is crucial to understand where he stands on issues of critical importance to the American people. 

In one such case, United States Telecom Association. v. FCC, the D.C. Circuit Court of Appeals was called upon to review the constitutionality of the Federal Communications Commission’s net neutrality regulations from 2015. Kavanaugh’s dissenting opinion places a troublingly limited value on the free speech interests of the public relative to those of internet service providers.

In his United States Telecom dissent, Kavanaugh acknowledges the importance of the net neutrality issue, writing that:

The FCC’s 2015 net neutrality rule is one of the most consequential regulations ever issued by any executive or independent agency in the history of the United States. The rule transforms the Internet … prohibiting Internet service providers from exercising editorial control over the content they transmit to consumers. The rule will affect every Internet service provider, every Internet content provider, and every Internet consumer. The economic and political significance of the rule is vast.

The FCC’s net neutrality order prevented internet service providers from engaging in content-based discrimination. Such rules are essential to ensuring all internet users have the ability to freely access information and communicate their opinions online. Unfortunately, Kavanaugh was not concerned with the free speech of average people in United States Telecom, but only with the free speech interests of corporations.

As an organization devoted to the robust application of the First Amendment to online speech, the ACLU takes the concern that government regulation could violate ISPs’ First Amendment rights seriously. But principles of net neutrality do not violate anyone’s First Amendment rights. Rather, they promote core First Amendment values.

The essential question in the case was whether the government’s interest in enabling the public to speak out freely and access information online was “substantial” enough to justify a limited infringement of the rights of the ISP companies to manipulate their customers’ online access.

Context matters. With respect to the net neutrality rules, the government’s interest — at least under the Obama administration — was ensuring that the public could freely and fairly access all lawful internet content without discrimination by ISPs. ISPs have sizeable power to regulate users’ speech by speeding up, slowing down, and blocking access to internet content — and, therefore, they have a major influence over society’s marketplace of ideas. As a result, there was no less invasive or effective method of securing full and fair access than through net neutrality rules. The ISPs’ countervailing corporate interest, which in the view of the Obama administration was less important than the public’s interest, was to be able to leverage their role as the gatekeepers of the internet to maximize their profits and their ability to influence public opinion on a limitless range of topics.

Amongst these two competing interests, government policymakers could have come down on the side of the ISPs, but they did not. Rather, through its net neutrality rule, the Obama administration exhibited a clear preference for protecting the online free speech interests of the American people.

Kavanaugh took the opposite position. To rule in favor of striking down the FCC’s rule, he needed to find that the government’s interest in promoting the public’s ability to learn and communicate online, free from corporate bias and censorship, was not “substantial.” To reach such a strained result, Kavanaugh engaged in some judicial prestidigitation: Beyond devaluing the importance of net neutrality to the free speech interests of the public, he also had to elevate the risk net neutrality presented to ISPs’ free speech rights and, to provide himself extra cover, suggest the Constitution’s framers would have done the same thing.

Kavanaugh wrote that what made the net neutrality rules so constitutionally objectionable was their intent to “compel … private Internet service providers to supply an open platform for all would-be Internet speakers, and thereby diversify and increase the number of voices available on the Internet.” While 86 percent of Americans believe this goal is a laudable one, Kavanaugh’s framing of the government interest was decidedly pejorative.

Kavanaugh then set out to elevate the free speech interests of the ISPs. He framed the ISPs’ interest in being permitted to engage in online content discrimination as their First Amendment right to exercise “editorial discretion.” Kavanaugh argued that the Constitution’s framers would have wanted to protect modern ISPs in the same manner they sought to protect the editorial rights of newspaper and book publishers. But in the context of net neutrality rules, this analogy inappropriately conflates the role of online content providers — like YouTube and USAToday.com — who generate internet content, with ISPs, who merely provide access to it. 

This is why the ACLU’s brief in the case labeled the ISPs’ editorial interests within the net neutrality context “at best speculative.” Nevertheless, given the limited value he saw in the government promoting the public’s free speech interests, and the high value he saw in the ISPs’ editorial rights, Kavanaugh concluded that ISP interests could only be overridden in the case of demonstrated “market dysfunction.” He did not recognize such dysfunction in the ISP market, despite the FCC’s own findings that more than 40 percent of American households have no market choice at all, because they live within the confines of a broadband provider monopoly. 

Kavanaugh’s dissent is based upon a convenient fallacy: that net neutrality regulates what content ISPs can and cannot publish. If that were actually the case, the government would be hard-pressed to assert a sufficient basis for infringing upon those rights. However, in the net neutrality context, where ISPs connect internet content providers with consumers, different interests are at stake. As one of Kavanaugh’ s Circuit Court brethren, Judge Sri Srinivasan, wrote in a critique of Kavanaugh’ s dissenting opinion:

[N]o Supreme Court decision supports the counterintuitive notion that the First Amendment entitles an ISP to engage in the kind of conduct barred by the net neutrality rule — i.e., to hold itself out to potential customers as offering them an unfiltered pathway to any web content of their own choosing, but then, once they have subscribed, to turn around and limit their access to certain web content based on the ISP's own commercial preferences.

Kavanaugh’s position in United States Telecom would have a devastating effect if it was embraced by the U.S. Supreme Court. It chooses the free speech interests of powerful corporations over those of the public. If Kavanaugh had been in the majority in the appeals court, he would have thrown out the net neutrality rules and the public’s free speech interests along with them. (President Trump’s FCC did just this when it reversed its predecessor’s rules last year.)

Prior to voting on the nomination of Brett Kavanaugh, all senators need to ask themselves a critical question: Are you willing to accept a Supreme Court justice who values the free speech interests of corporations over the free speech and intellectual freedom of your own constituents?

A federal court will be scrutinizing one of the National Security Agency’s worst spying programs on Monday. The case has the potential to restore crucial privacy protections for the millions of Americans who use the internet to communicate with family, friends, and others overseas.

The unconstitutional surveillance program at issue is called PRISM, under which the NSA, FBI, and CIA gather and search through Americans’ international emails, internet calls, and chats without obtaining a warrant. When Edward Snowden blew the whistle on PRISM in 2013, the program included at least nine major internet companies, including Facebook, Google, Apple, and Skype. Today, it very likely includes an even broader set of companies.

The government insists that it uses this program to target foreigners, but that’s only half the picture: In reality, it uses PRISM as a backdoor into Americans’ private communications, violating the Fourth Amendment on a massive scale. We don’t know the total number of Americans affected, even today, because the government has refused to provide any estimate.

This type of unjustifiable secrecy has also helped the program evade public judicial review of its legality because the government almost never tells people that it spied on them without a warrant. Indeed, the government has a track record of failing to tell Americans about this spying even when the person is charged with a crime based on the surveillance. That’s one reason why this case is so important — this time, the government has admitted to the spying.

In this case, the government accused a Brooklyn man, Agron Hasbajrami, of attempting to provide material support to a designated terrorist organization in Pakistan. After he pleaded guilty to one of the charges, the government belatedly admitted that it had read through his emails without a warrant.

Now Mr. Hasbajrami has challenged the government’s warrantless surveillance and is asking the Second Circuit Court of Appeals to throw out the resulting evidence. The American Civil Liberties Union and the Electronic Frontier Foundation are supporting him as friends-of-the-court, arguing that the surveillance was unconstitutional (the brief we filed is here). At the hearing on Monday, we’ll explain to a three-judge panel why the Fourth Amendment requires the government to get a warrant when it wants to exploit the communications of Americans who are swept up in PRISM.

This large-scale internet surveillance grew out of the Bush administration’s post-9/11 warrantless wiretapping program. It is conducted under a controversial law known as Section 702 of the Foreign Intelligence Surveillance Act. Relying on Section 702, the government intercepts billions of international communications — including many sent or received by Americans — and it hunts through them in investigations that have nothing to do with national security.

The government attempts to defend this spying by pointing out that its “targets” are foreigners located abroad. But this is no defense at all. Americans regularly communicate with individuals overseas, and the government uses PRISM surveillance to collect and sift through many of these private communications. The government has even admitted that one of the purposes of Section 702 is to spy on Americans’ international communications without a warrant.

The government casts a wide net, making it easy for innocent Americans who communicate with family, friends, and others overseas to be swept up. Relying on a single court order, the NSA uses Section 702 to put more than 125,000 targets under surveillance each year. These individuals need not be spies, terrorists, or accused of any wrongdoing — they can be journalists, business people, university researchers, or anyone else who may have information bearing remotely on “foreign affairs.”

PRISM is a warrantless wiretapping program that operates around the clock, vacuuming up emails, Facebook messages, Google chats, Skype calls, and the like. Government agents do not review all of the information in real-time — there’s simply too much of it. Instead, the communications are pooled together and stored in massive NSA, FBI, and CIA databases that can be searched through for years to come, using querying tools that allow the government to extract and examine huge amounts of private information.

One of the most problematic elements of this surveillance is the government’s use of “backdoor searches” to investigate individual Americans. Although the government says PRISM is targeted at foreigners who lack Fourth Amendment privacy rights, it systematically combs through its PRISM databases for the emails and messages of Americans. Indeed, FBI agents around the country routinely search for the communications of specific Americans using their names or email addresses — including at the earliest stages of domestic criminal investigations.

The result is an end-run around the Fourth Amendment. Investigators have easy access to a trove of Americans’ private emails, calls, and messages, without ever seeking individualized approval from any judge, as the Constitution requires.

This surveillance leaves far too much unchecked power in the hands of executive branch officials. Today, that includes President Trump, who as a candidate called for expanded spying on Americans. The ACLU is taking on this threat to Americans’ privacy rights, just as we challenged the government’s warrantless wiretapping across both the Bush and Obama administrations. Now the courts must do their part to ensure that Americans’ online communications receive the full protection of the Fourth Amendment.