Behold, the Demogorgon of Net Neutrality: Brett Kavanaugh

Law is boring, while politics is not just dull but nasty and fake, like a deliberately depressing satire on professional wrestling. But boy, does it matter. If you care about freedom, you care about net neutrality – and if you care about that, then grab your d20, because: Do I have a new monster to put on the table.

This guy.Judge Brett KavanaughSource

Meet Judge Brett Kavanaugh, Donald Trump’s nominee for the Supreme Court seat vacated by Justice Anthony Kennedy.

Personally, I think he looks like someone who you’d meet on a golf course in Hell, but it’s not the soulless, vacant eyes that scare me. It’s the possibility of getting a Supreme Court judge who thinks net neutrality is unconstitutional.

Here’s his reasoning:The First Amendment to the U.S. ConstitutionSource

Congress shall make no law: but the Supreme Court?

The First Amendment guarantees that ‘Congress shall make no law’ that violates pre-existing rights including free speech and a free press.

But Judge Kavanaugh’s argument is that net neutrality violates the First Amendment rights of ISPs – by not letting them decide which websites to ban, censor, throttle and fast-lane.

I think I speak for us all when I say: yeah, right.Stop interfeering with my freedom of speech!Source

I mean, that’s one way to look at it. Here’s another: Net neutrality is the principle that ISPs are carriers, not publishers. Do they have a right to act as publishers by creating their own blogs? Yes, of course. They can buy a tower in Manhattan and project their opinions on it if they want. But they don’t have the First Amendment right to trample all over your First Amendment rights.

This isn’t like the New York Times deciding which news is and isn’t fit to print; the whole point there is that you can always buy another newspaper.

The legal argument falls apart along two axes: common carrier, and free speech more generally.

Common carrier

ISPs aren’t publishers. Facebook isn’t a publisher. Facebook is a platform (among other things). And the ISP that delivers your connection to Facebook is no more a publisher than Con Ed is a lightbulb manufacturer. Saying otherwise is like saying Daler-Rowney is the most prolific artist of modern times. Nope: they make paint, not paintings. ISPs carry, not publish; newsboys aren’t publishers either, for the same reason.

The First Amendment doesn’t give you the right to shut me up

Before any constitution buffs jump down my throat, the First Amendment doesn’t give you any rights – it guarantees rights it presupposes to already exist (‘We hold these truths to be self-evident,’ and all that).

But it guarantees you the right to say whatever you like – with remarkably few limitations. The First Amendment has been interpreted as giving Nazis the right to march through Jewish neighborhoods inhabited by Holocaust survivors, schoolkids in public schools not to have to wear uniforms, and an untold amount of political mockery, plain dumb personal abuse – and actual journalism.

Free to publish – not to silence

When Woodward and Bernstein published, they might have worried that Nixon would hire someone to come round and beat them up; they knew for sure it wouldn’t be the cops, because their expose proving their president was a paranoid, maniacal criminal thug was under the absolute protection of the First Amendment. It couldn’t be illegal – because Congress was forbidden from making a law saying so.

What the First Amendment does not guarantee you is the right to tell me what to say, think, hear and watch. It denies that right to the Federal Government; while it doesn’t explicitly deny it to private organizations like ISPs, an ISP that can tell you what you’re allowed to hear isn’t the same as someone telling you something you don’t like the sound of.

It’s like UPS telling you which books you can receive through the mail. See how that’s got nothing to do with their First Amendment rights, and everything to do with yours?

Goodbye internet – and goodbye right to choose?

There’s no way Kavanaugh is blind to this. And there’s no guarantee that Kavanaugh’s nomination survives the lengthy confirmation process. However, Trump wants to ram him through as quickly as possible, ensuring that the SCOTUS is dominated for decades to come by Republican right-wingers who will take an axe to the internet – and to other things that might matter to you, like Roe v Wade.

You can see him dodge that question here. In his confirmation hearing for DC Federal Appeals Court, Kavanaugh is asked: ‘Do you consider Roe v. Wade to be an abomination?’

Kavanaugh’s reply speaks volumes for what it doesn’t say – he can’t manage a ‘no’ – and for what it sneaks in under the wire: he considers it a binding precedent, because of the ruling of the Supreme Court. But if he were on that court? Bad news.

Whatever your opinion is on Roe v. Wade, I’m sure you’d like to make up your own mind – not have AT&T make it up for you by deciding which websites you’re allowed to read on the subject.

This means, yes, it’s time to start calling your representatives. (I’m thinking of changing my name to Call Congress…)

Let’s call Congress

Here’s how to do that.

Go here:

Drop your address into the search box:

Bingo, you’ll see all your representatives. You can choose between Senators and Representatives. Or you can call both. And email them. Like, as in today.  Pencil it in for tomorrow too. A lot could be on the line here: this is a Supreme Court Justice, and not to be cold-blooded, but he’s only 53 and this is an appointment for life. If he gets in, it’s gonna feel like it.

Oh, and to keep yourself safe from the spying eyes of people who don’t care a damn for the First Amendment, get yourself a VPN already!


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