President Trump's Supreme Court nominee argued last year that net neutrality rules violate the First Amendment rights of Internet service providers by preventing them from "exercising editorial control" over Internet content.

Trump's pick is Brett Kavanaugh, a judge on the US Court of Appeals for the District of Columbia Circuit. The DC Circuit twice upheld the net neutrality rules passed by the Federal Communications Commission under former Chairman Tom Wheeler, despite Kavanaugh's dissent. (In another tech-related case, Kavanaugh ruled that the National Security Agency's bulk collection of telephone metadata is legal.)

While current FCC Chairman Ajit Pai eliminated the net neutrality rules, Kavanaugh could help restrict the FCC's authority to regulate Internet providers as a member of the Supreme Court. Broadband industry lobby groups have continued to seek Supreme Court review of the legality of Wheeler's net neutrality rules even after Pai's repeal.

Wheeler's rules—which prohibited blocking, throttling, and paid prioritization—were upheld by the DC Circuit in a 2-1 panel decision in June 2016, and again when the full court denied the broadband industry's petition for an en banc rehearing in May 2017.

Six judges voted to deny the industry's petition for a rehearing, while Kavanaugh was among two dissenting judges. Kavanaugh's dissent said that "the net neutrality rule is unlawful and must be vacated."

"The rule transforms the Internet by imposing common-carrier obligations on Internet service providers and thereby prohibiting Internet service providers from exercising editorial control over the content they transmit to consumers," Kavanaugh wrote.

The FCC's imposition of the rule was unlawful because "Congress did not clearly authorize the FCC to issue the net neutrality rule" or to impose common-carrier obligations on ISPs, Kavanaugh argued. But even authorization from Congress wouldn't have saved the net neutrality rules from Kavanaugh's dissent, because he also argued that the rules violate ISPs' First Amendment free speech rights.

Under Supreme Court precedents, "the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market," Kavanaugh wrote. "Here, however, the FCC has not even tried to make a market power showing. Therefore, under the Supreme Court's precedents applying the First Amendment, the net neutrality rule violates the First Amendment."

Judge: Like cable TV, ISPs “decide” which websites to transmit

Consumers generally expect ISPs to deliver Internet content in un-altered form. But Kavanaugh argued that ISPs are like cable TV operators—since cable TV companies can choose not to carry certain channels, Internet providers should be able to choose not to allow access to a certain website, he wrote.

"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," Kavanaugh wrote. "Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes."

Kavanaugh's argument did not address the business differences between cable TV and Internet service. Cable TV providers generally have to pay programmers for the right to carry their channels, and cable TV providers have to fit all the channels they carry into a limited amount of bandwidth. At least for now, major Internet providers don't offer a set package of websites—they just route users to whichever sites the users are requesting. ISPs also don't have to pay those websites for the right to "transmit" them, but ISPs have argued that they should be able to demand fees from websites.

Kavanaugh’s view rejected by fellow judges

DC Circuit Judges Sri Srinivasan and David Tatel wrote an opinion disputing Kavanaugh's arguments. Here's how Srinivasan and Tatel responded to Kavanaugh's First Amendment claim:

[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.

Also contrary to Kavanaugh's argument, Srinivasan and Tatel wrote that the FCC had the authority to reclassify ISPs as common carriers and impose net neutrality rules.

"[T]e Supreme Court, far from precluding the FCC's [net neutrality] Order due to any supposed failure of congressional authorization, has pointedly recognized the agency's authority under the governing statute to do precisely what the Order does," they wrote.

Srinivasan and Tatel cited the 2005 Brand X case that we've written about before; the case upheld the FCC's earlier declaration that cable Internet is an information service rather than a common carrier service. Brand X helped Wheeler's FCC defend the net neutrality rules because the Supreme Court decision supports the FCC's authority to define Internet service however it wishes, so long as it provides a reasonable justification.

"[T]he Court made clear in its decision—over and over—that the [Communications] Act left the matter to the agency's discretion," Srinivasan and Tatel wrote. "In other words, the FCC could elect to treat broadband ISPs as common carriers (as it had done with DSL providers), but the agency did not have to do so."

Srinivasan and Tatel also provided the two votes supporting the FCC's right to impose net neutrality rules in the 2016 version of the case. "Because a broadband provider does not—and is not understood by users to—'speak' when providing neutral access to Internet content as common carriage, the First Amendment poses no bar to the open Internet rules," they wrote at the time.

The net neutrality rules forbid ISPs from blocking lawful websites and did not apply when ISPs cooperated with emergency communications and law enforcement officials, public safety agencies, and national security authorities.

Judges also noted that the net neutrality rules only applied to ISPs that hold themselves out to consumers as "neutral, indiscriminate conduits" to the Internet. Technically, the rules allowed Internet providers to filter the Internet if they didn't act as a common carrier, as some services targeted at religious people have done. That exception supported the case that the rules did not violate the First Amendment and was narrow enough that it wasn't likely to be abused by major ISPs.

Kavanaugh’s support of NSA surveillance

In November 2015, Kavanaugh was part of a unanimous decision when the DC Circuit denied a petition to rehear a challenge to the NSA's bulk collection of telephone metadata. Kavanaugh was the only judge to issue a written statement, which said that "[t]he Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment."

Even if this form of surveillance constituted a search, it wouldn't be an "unreasonable" search and therefore it would be legal, Kavanaugh also wrote.

"The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient 'special need'—that is, a need beyond the normal need for law enforcement—that outweighs the intrusion on individual liberty," Kavanaugh wrote. "The Government's program for bulk collection of telephony metadata serves a critically important special need—preventing terrorist attacks on the United States. In my view, that critical national security need outweighs the impact on privacy occasioned by this program."

In a separate legal area that might be of concern to President Trump, Kavanaugh argued in a Minnesota Law Review article in 2009 that sitting presidents should not have to face civil suits or criminal investigations until after they leave office.

"The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office," Kavanaugh wrote at the time. "If the President does something dastardly, the impeachment process is available."

If confirmed by the Senate, Kavanaugh would replace Justice Anthony Kennedy, who is retiring effective July 31.