Judge Kavanaugh and freedom of expression
As Jonathan Adler recently observed, Justice Anthony Kennedy’s “expansive conception of the First Amendment’s protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last.” Although it is not clear whether Judge Brett Kavanaugh would compile a similar record on the Supreme Court, we can make a few tentative predictions based on his record in the U.S. Court of Appeals for the District of Columbia Circuit. (Of course, all of the usual caveats associated with predicting the behavior of lower court judges once elevated to the Supreme Court apply.) This post reviews cases in which Kavanaugh either joined or authored opinions concerning freedom of speech and, to a lesser extent, other First Amendment rights (specifically, press and petition). It excludes decisions and opinions in the area of campaign finance, which were discussed in a prior post.
Kavanaugh’s record in First Amendment cases demonstrates a precedent-based or “common law” methodology, one that also relies on the lessons of history regarding free speech, press and petition rights. In substance, his record suggests that Kavanaugh would not expand the speech rights of government employees and might interpret the government speech principle rather broadly. He has also concluded that noncitizens abroad do not enjoy First Amendment rights – an issue the Supreme Court has not directly decided. However, in many contexts, Kavanaugh would likely be a consistent supporter of First Amendment rights. He has emphasized the importance, to democratic self-governance and the search for truth, of robust free speech, press and petition rights. He has adopted an expansive interpretation of editorial and speaker autonomy rights, is generally skeptical of measures that compel speech and association, and views government power to regulate private speech as sharply circumscribed. Looking forward, Kavanaugh’s appointment could have a significant impact in regulatory areas such as telecommunications and data privacy. Notably in this regard, his opinions suggest strong support for the speech rights of corporations, including digital-content providers.
Read more here.