Little Known Or Assumed About Court Nominee Kagan’s Technology Views

Limited writing by Elena Kagan, nominated Monday to the Supreme Court, about technology, media and intellectual property law means there are few clues about how she would deal with these matters as a justice, lawyers said Monday. “There really isn’t much out there, and most of her articles are descriptive,” said Marvin Ammori, professor at University of Nebraska College of Law. “She discusses different ideas, versus arguing ‘here are the outcomes that should be achieved.’ You can’t really pin her down on which cases she approves of and which cases she doesn’t."

Kagan has rarely dealt with communications law, apart from three law review articles about the First Amendment, Ammori said. But her job as the U.S. solicitor general has twice brought her into contact with communications cases, both coincidentally involving Cablevision. Weighing in at the Supreme Court’s request, Kagan opposed a petition by a group of cable programmers for the high court to review a 2nd Circuit decision allowing Cablevision to adopt a remote storage DVR system. The Supreme Court declined to hear that case. This year, she signed a brief arguing why the high court should not hear Cablevision’s appeal of the FCC’s must-carry rules. The justices haven’t decided whether to review the decision.

Despite her apparent support for Cablevision in the copyright case, Kagan would probably be an improvement from Justice John Paul Stevens from content owners’ standpoint, said Progress and Freedom Foundation Senior Fellow Thomas Sydnor. In the three biggest recent copyright cases -- Sony, Eldred, and Grokster -- Stevens took positions not favorable to copyright holders, Sydnor said. “My guess would be that whoever is confirmed to replace Justice Stevens is likely to be more friendly to copyright owners,” Sydnor said.

Kagan was “a big supporter of the broad research agenda going on at the Berkman Center” for Internet and Society, as dean of the Harvard Law School, said Lawrence Lessig, a professor at the school. Otherwise, her views on intellectual property law aren’t widely known, he said. “I don’t think there is anything in the record, and I don’t know anything personally about her views of intellectual property law,” Lessig said. She is a First Amendment expert, he said. She took a good and promising approach to it as solicitor general in the Citizens United v. FEC case, “but I think we don’t have any clear reason to understand where she’s going to stand on the First Amendment as it affects communications law generally."

Kagan carved out clearer positions on administrative law, said Free State Foundation CEO Randolph May. In a 2001 article, “Presidential Administration,” she made a case that independent federal commissions like the FCC should be granted less deference by the court under Chevron v. NRDC than executive branch agencies more closely linked to the president. That could have huge implications for the communications bar, May said. “There’s not a brief that the commission files in any appellate court in which it doesn’t cite Chevron,” May said.

That’s an argument the courts have dealt with, said May, who explored it further in an 2006 article for the Administrative Law Review called “Defining Deference Down: Independent Agencies and Chevron Deference.” “If her view about Chevron prevailed, that would obviously affect all of the review of FCC decisions,” he said. “Whether she could ever persuade any of her colleagues about this would be a different thing.”