With the U.S. Supreme Court building in the background, Supreme Court nominee judge Brett Kavanaugh arrives prior to meeting with Senate Majority Leader Mitch McConnell on Capitol Hill in Washington, U.S., July 10, 2018. REUTERS/Joshua Roberts TPX IMAGES OF THE DAY
First Amendment Experts Have Mixed Feelings On Supreme Court Nominee Judge Brett Kavanaugh’s First Amendment Record

Damon Root refers to the current Supreme Court nominee’s record on free and commercial speech as “discouraging” in his analysis in Reason.  “Free Speech advocates are likely to be disappointed by the answer when they examine Kavanaugh’s vote in an important 2014 case,” he writes, citing the judge’s ruling in American Meat Institute v. Department of Agriculture.  In that case, Kavanaugh upheld a federal regulation that forced the meat industry to include “country of origin” information on packaging which meat packers challenged on First Amendment grounds, arguing that it amounted to compelled speech.


Brian Miller writes in Forbes on Kavanaugh’s “Principled Record” on free speech, noting that his First Amendment rulings from twelve years on the bench are consistent. He points to Kavanaugh’s majority opinion in Emily’s List v. FECwhere he wrote that Emily’s list deserved “full First Amendment Protection” and his dissent in Priests for Life v. HHS,  a First Amendment religion case.  Miller asserts, “These two cases show that regardless of the speaker’s point of view, Judge Kavanaugh clearly believes the First Amendment protects everyone. When faced with speech on both sides of a controversial issue, he ruled in favor of protecting speech each time.”


Ken White of Popehat takes a deep dive into Kavanaugh’s twelve years on the D.C. Circuit and shows that he is strongly protective of free speech in “substance and rhetoric”, and often applies free speech doctrines to classic free speech cases and top government regulation scenarios.


Jonathan H. Adler writes in The Volokh Conspiracy that Judge Kennedy “was the most speech-protective justice on the most speech-protective Supreme Court in our nation’s history” and that Kavanaugh’s nomination to fill the seat will likely ensure his free speech legacy to survive.

The Volokh Conspiracy>

Other reports have pointed to Kavanaugh’s dissent as part of a hearing on the FCC’s net neutrality order which he argued violated First Amendment protections, among other things.

CNBC> The Verge>  Variety>

Reporter’s Committee For Free Press issued a special report looking at Kavanaugh’s opinions on defamation, FOIA, free speech cases, and more.

Reporter’s Committee For Free Press Special Report>

Ariel Shapiro writes for CNBC that Kavanaugh’s First Amendment argument against net neutrality could have broader applications to data, making current and later regulations more difficult to uphold.


Adam Liptak writes in The New York Times about his prediction that if confirmed to the Supreme Court, Kavanaugh would likely uphold and expand the Citizen United decision. Liptak bases his argument on the fact that Kavanaugh has “a favorite sentence” which he has written is “perhaps the most important sentence in the court’s entire campaign finance jurisprudence” and referred to it as “one of the most important sentences in First Amendment history.”

The sentence, which appeared in the 1976 SCOTUS decision of Buckley v. Valeo is:

“The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

Justice Kennedy quoted this sentence in his majority opinion in Citizens United, and said that it also applied to corporate and union spending.

The New York Times>

Robert Litan, Nonresident Senior Fellow at the Brookings Institution asks, “Will Kavanaugh further deregulation using the First Amendment?”

He warns that as the Kavanaugh nomination looms ahead, one issue that should not be lost in debate is the extent to which his confirmation will further the Court’s use of the right of free speech to strike down various regulatory disclosure requirements, what he considers a legal tactic that is “highly problematic.”

Brookings Institution>