Communications Law Fallout From Kennedy Retirement Cloudy, but Chevron Seen as Vulnerable

The communications law impact of Supreme Court Justice Anthony Kennedy's retirement remains largely a mystery (see 1806270070) as the Senate gears up for a confirmation battle. Not only is there a guessing game over who President Donald Trump will nominate as a replacement, but Kennedy's views aren't easy to pigeonhole, attorneys told us. He's "been all over the map," emailed TechFreedom President Berin Szoka.

Even on the First Amendment, where Kennedy was seen as an ardent backer of free speech and other rights, including in indecency cases, his views could be nuanced. On broadband regulation, he sided with the 2005 Brand X majority in deferring to the FCC's cable modem Title I "information service" classification under the Communications Act, though he grew increasingly skeptical about the Chevron doctrine providing that deference.

"I believe the nominee ... will have strong views on administrative law and most likely be more skeptical of the administrative state," emailed Gibson Dunn's Helgi Walker. "That has ramifications for communications law, and many other subject matters too. We could see wholesale revisions to the level of deference that agencies get in construing their organic statutes, and even some decisions questioning the constitutionality of some agencies." On regulation, "nothing matters more than Chevron deference," said Szoka, who was among those who cited a Kennedy opinion as signaling the court is moving toward scaling back that deference.

Yet others urged caution on communications fallout amid the uncertainties, including in the Senate, given the narrow GOP margin and Democratic calls for delaying action until after the November mid-term election. "It really is impossible to tell what effect Justice Kennedy's departure will have on the Court’s overall First Amendment jurisprudence until we have some sense of his likely replacement," emailed Davis Wright's Bob Corn-Revere. "With the number of names that are being floated, it would just be speculation. The only certain thing at this point is that a strong champion of First Amendment rights is leaving the Court.”

Twenty-five people, mostly federal appellate judges and state Supreme Court justices, are on a White House list. Trump said Wednesday he wants somebody who would be on the court for 40-45 years. Among the leading contenders reportedly are: Thomas Hardiman, 52, of the 3rd U.S. Circuit Court of Appeals; the D.C. Circuit's Brett Kavanaugh, 53; the 6th Circuit's Amul Thapar, 49, and Raymond Kethledge, 51; the 7th Circuit's Amy Coney Barrett, 46; and the 11th Circuit's William Pryor, 56.

Some believe Hardiman was edged out last year by Neil Gorsuch, whom Trump nominated and the Senate confirmed as justice. "The conventional wisdom was he was the runner-up," said University of Tennessee media management and law professor Stuart Brotman, who said Hardiman is backed by Trump's sister, Maryanne Trump Barry, an inactive 3rd Circuit senior judge. "Trump is a very personally oriented person," said Brotman, who called Thapar the choice of Senate Majority Leader Mitch McConnell, R-Ky. A relatively young nominee could be more "digitally savvy" and more inclined to grant cert on tech cases, Brotman said.

Kennedy "was a strong supporter of First Amendment rights," emailed Kenneth Jost, author of the Supreme Court Yearbook and a blog. He noted Kennedy wrote the opinion throwing out a broadcast indecency decision in the 2012 FCC v. Fox (here), and joined in striking down parts of the Communications Decency Act in 1997's Reno v. ACLU (here). "Kennedy had a broad anti-regulation view of the First Amendment in the context of media law," emailed Enrique Armijo, academic dean and associate professor of Elon University School of Law. He said Kavanaugh, "one of the most-talked about likely successors ... (and like Justice Gorsuch, a former Kennedy law clerk), would be at least as skeptical of regulation as was Kennedy, if not more so." Armijo also noted Kavanaugh dissented from the D.C. Circuit's 2017 en banc USTelecom ruling (here) that upheld the FCC's Title II net neutrality regulation, partly on First Amendment grounds.

Yet Kennedy wrote the two opinions that ultimately upheld "must-carry" law requiring cable operators to carry broadcast stations -- in the 1997 Turner Broadcasting II (here) -- despite cable's First Amendment challenge. Kennedy opinions said cable operators were "speakers" exercising editorial judgment, but sided with the government's interest, exemplifying his "very nuanced and fact-specific approach," emailed Davis Wright's Peter Karanjia. Kennedy was more supportive of "regulation of mass media to promote diversity, and somewhat more suspicious of government censorship of social media and the Internet, than the other conservative judges," emailed Harold Feld, Public Knowledge senior vice president. He noted Kennedy wrote the 2017 opinion in Packingham v. North Carolina striking down the state's "total ban on registered sex offenders using social media."

Several cited Kennedy's recent call for revisiting the Chevron deference in a Pereira concurring opinion last week (here), in light of colleagues' concerns. Kennedy joined Chief Justice John Roberts and Justices Clarence Thomas and Gorsuch "in questioning the continuing validity" of Chevron," emailed Free State Foundation President Randolph May, noting deference is "very important" to the FCC and other agencies. "While Justice Kennedy’s doubt regarding Chevron now will be missed, I suspect that his successor likely will be a Chevron doubter as well, maybe even a strong one."

Kennedy's concurrence "was perhaps something of an invitation to his successor to join others on the Court who have expressed a desire to at least curtail, if not entirely do away with, Chevron," emailed Karanjia. "If, like Gorsuch, Kennedy's successor feels the same way, Chevron's days may be numbered," emailed Szoka. He said the pending appeal of TechFreedom and others challenging the FCC 2015 net neutrality order "may be the perfect case for the Court to finally rein in Chevron."

Szoka said the new justice's view on interstate commerce is critical. In last week's South Dakota v. Wayfair decision (here) (see 1806210067), "Kennedy upheld states' ability to tax online sales made by out of state vendors," Szoka emailed. "But he didn't go nearly as far as Thomas and Gorsuch in rejecting the Dormant Commerce Clause. A shift in the next Justice's views on this topic could have major implications for the Court's Internet policy jurisprudence."