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?

Kevin McAleenan, the commissioner of Customs and Border Protection, recently gave The New York Times an interview. For those expecting some contrition from him for the lasting trauma inflicted by CBP on children taken away from their parents under the Trump administration’s family separation policy, or empathy for the hundreds of kids still without their parents, his answers project callous defensiveness and alarming inaccuracy. 

McAleenan’s Border Patrol agents are the ones who implemented family separation, so he has a responsibility to engage in straight talk about what happened and his views on the policy. Instead, however, McAleenan chose in the interview to be evasive and downright misleading, leaving a clear impression of CBP’s sole “lesson learned”: It’s the public reaction to this vile policy that went wrong — not the actual damage it caused.

When asked, “Do you have any regrets about how [family separation] was implemented?” McAleenan replied: “I think we have a responsibility to protect families and children. Well-intended efforts to enforce the law are not going to succeed if they lose the public trust.” This echoes the words of an anonymous Border Patrol official, who recently stated, “We missed out on an opportunity to educate the public about the reality of the border. You have to think everything through before you move on something like this, and when the pushback hits, you have to weather the storm.” 

Yes, CBP considers that it acted “to protect families and children” by separating families who turned themselves in to Border Patrol agents to seek protection in the United States from horrific violence in their home countries. In this view, the policy was and is right. Indeed, it would have continued if only the public had been “educated” about CBP’s good intentions, and the “storm” of criticism forestalled. Elsewhere, McAleenan has claimed that family separations were carried out in “the most humane and civilized way” — against the backdrop of widespread reports that Border Patrol agents disappeared children after telling their parents it was bath time.

Without a word on the administration’s abysmal failure to keep track of families, which continues to this day to leave many children alone, McAleenan eschews self-criticism and accuses outside forces of misunderstanding CBP: “The narrative now is that the Border Patrol orphaned hundreds of children. It’s just not true. There was no intent for indefinite and certainly not permanent separation.” 

His use of passive voice, however, can’t cover up the devastation caused by agents acting under his orders. Moreover, McAleenan knows that “zero tolerance” — the policy of prosecuting every person who crosses the border between ports of entry, which led to thousands of family separations — grew out of a CBP-incubated pilot program in El Paso last year. That program led to indefinite separations, some of which continue, as well as false claims by the Department of Homeland Security that other families considering seeking protection in the U.S. were successfully deterred from doing so. McAleenan also fails to support his implication that toxic stress, understood by experts to cause children massive harm when separated from their parents, applies only to indefinite or permanent separation. 

The administration’s family separation policy was designed not in the best interests of children but to “send a message” regardless of the humanitarian cost. Indeed, zero tolerance prioritized family separations over the prosecution of single adults for immigration violations and in addition reduced focus on other crimes. When McAleenan was asked if the policy worked as a deterrent, he said, “Total family crossings last month [July] were down.” Yet CBP’s own statistics show the following numbers of families apprehended entering the country from May to July: 9,485 in May, 9,434 in June and 9,258 in July.

In other words, McAleenan seems to be claiming that a two-month reduction of 2 percent in families crossing the border is justifiably correlated to the trauma inflicted on thousands of parents and children.

McAleenan is a career public servant, not a political appointee. He is capable of — and owes the public — honest reflections on why CBP embraces family separations and zero tolerance when, aside from their moral offensiveness, they are completely at odds with CBP’s own past policy. (Its Consequence Delivery System, promoted since the start of this decade, is based on the idea that federal criminal prosecution is not justified or effective as a “one size fits all” approach to immigration law enforcement.) He should describe what “root cause” initiatives in Central America the administration is supporting to address why people flee their homes to seek refuge. He should explain how other new policies — like suspending the Central American Minors Program, which offered in-country protection to children with parents already in the U.S. — furthered those goals. He should also explain why he calls for Mexico to be designated a “safe third country” for asylum seekers from other countries while simultaneously talking about violent crime statistics there to discourage migrant travel from Central America.

Not all government officials refuse to raise alarms. Senior Department of Health and Human Services official Jonathan White presciently warned against the trauma caused by family separations. But he appears to be in a small minority.

We’re only at the first-draft stage of history’s verdict on the Trump administration’s separation of families, though. Maybe one day we’ll discover that Commissioner McAleenan tried to talk his superiors out of harming children and exhorted his agents to treat families better than has been reported. Or, based on the content of his interview, maybe not.

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