How Justice Kennedy's Decisions Shaped Media and Telecom

Current articles about changes on the court emphasize Justice Kennedy39s pivotal role in joining and sometimes leading liberal decisions despite being the nominee of a Republican president and mostly voting with the court39s conservativesamp160 But Kennedy dislikes the term quotswing judgequot as noted by The New York Times which says that despite sometimes appearing eccentricamp160his jurisprudence is based on quotfixed and strongquot viewsamp160 Other commentators note that his decisions overall reflect a civil libertarian interest in minimizing governmental intrusion in individual freedoms deeply rooted in the US ConstitutionThis emphasis on constitutionally mandated freedoms began early in Kennedy39s careeramp160 In 1965 after three years in private practice he became a professor of constitutional law at University of the Pacific39s McGeorge School of LawBy 2002amp160after 14 years on the US Supreme Courtamp160Ashcroft v Free Speech Coalition demonstrated Kennedy39s belief in a strict interpretation of freedom of speech even in a case centered onamp160publication of child pornography a use of digital media that he found repugnantamp160 Authoring the opinion for a mixed group of conservative and liberal justices Kennedy described the Child Pornography Prevention Act ofamp1601996 as being quotoverbroad and unconstitutionalquot in its limitations on free speechThe digital age was still sciencefiction fantasy when Kennedy was admitted to the California Bar in 1962amp160 Telecommunications law was in its infancyamp160 It wasamp160a time when television was relatively young and lightly regulated yet careful to screen straightlaced contentamp160 However by 1970amp160the Federal Trade Commission decided that TV39s Big Three networks ABC CBS NBC were breaking the public interest rule of the Communication Act of 1934 by exerting so much control over type timingamp160and providers of broadcast contentamp160 There was a scarcity of room in the airwaves for diversityamp160 So the FCC established the Financial Interest and Syndication Rules FinSyn which limited network power and financial gain amp160FinSyn spurred the growth and syndication opportunities of alternative networks transmitted via cable and dish technologiesamp160 It also encouraged the spread of toolsamp160such as VCRs and DVDsamp160which made home viewing more flexibleamp160 Except for content broadcast by the Big Three television became a payperview environment while the traditional networks struggled to compete for content and viewersamp160 This not only threatened survival of the Big Three but also access to content for viewers who couldn39t afford cable and dish subscriptions extra fees for content on those media and new home recording techAs this problem arose and the balance of power between the traditional and cable networks shifted Congress passed the Cable Television Consumer Protection Act of 1992amp160 It forced cable companies to set aside some of their channels for local programmingamp160 This isamp160the quotmustcarryquot rule of broadcast media lawA year later the FCC repealed FinSyn with public interest in mindamp160 However what goes around comes around and of course may reach the Supreme Courtamp160 When broadband debuted as a speedy internet transmission technology in the 2000samp160our current telecommunication giants were born the internet service providers some of which arose from cable companies and others through what were formerly telephoneamp160companiesamp160 In some parts of the countryamp160there are so few ISPs that the ones serving those areas are virtually monopoliesamp160 The irony of FinSyn39s death is that public interest complaints concerning access to and quality of the media have expanded amp160As Justice Kennedy departs the court the media and telecommunications industries face digital battles reminiscent of the FinSyn eraamp160 In particular uncertainty abounds concerning consequences of the FCC39s June 11 repeal of net neutrality policies initiated in 2005 and formalized in 2015 to retain open access to the internet and digital innovationamp160 Although internet service providers may benefit from deregulation they also may struggle if confronted by a growing patchwork of state legislation setting net neutrality rulesNet neutrality the ability to innovate in digital industries and monopolistic ISPs are key challenges facing the media and telecommunication industriesamp160 Although the neutrality issue isn39t yet on the court39s doorstep antitrust issues and questions about digital innovation freedom of speechamp160and privacy have arrivedHere are some examples of decisions that Justice Kennedy helped shapeAntiTrust DecisionsVerizon Communications Inc v Law Offices of Curtis V Trinco LLP 2004This quotmustcarryquot case was based on the Sherman AntiTrust Act of 1890 and the 1996 Telecommunications Act which aimed at increasing competition among telephone companiesamp160 Verizon dominated telephone communication in New York State and provided ATampampT with access to its systemamp160 ATampampT customer Curtis Trinco asserted that Verizon provided inferior service for ATampampT customersamp160 The court unanimously found in favor of Verizon stating that Trinco failed to prove antitrust activity under the Sherman standardTakeawayamp160 Relative to an antitrust action the Sherman Act is more of an armored tank than the Telecommunications ActOhio v American Express Co 2018In 2010 the federal government and 17 states brought an antitrust suit against three credit card companies VISA Mastercardamp160and American Express regarding practices that stifled competition by steering business away from merchants based on what cards they acceptedamp160 VISA and Mastercard dropped out of the suit by rescinding their steering activityamp160 But American Express persisted and eventually arrived at the Supreme Courtamp160 A conservative block of justices including Kennedy decided in Amex39s favor at the end of JuneVox Media says this decision weakens the Sherman Act and may have negative consequences far beyond the credit industryamp160 Vox says it39s possible that the Amex decision will become a precedent harming customers employeesamp160and suppliers of large hightech companiesTakeawayamp160 This ruling may make it easier to form monopolies in the media and telecommunications industriesCopyright DecisionABC Inc v Aereo Inc 2014Aereo a technology innovator that invented a dimesize antenna for transmitting network television programming over the internet went bankrupt following its loss to ABCamp160 Conservatives on the Supreme Court including Justice Kennedy decided that transmitting programs for which it hadn39t paid to subscribers over the internet was breach of copyrightCiting two other Supreme Court cases concerning technology the Council on Foreign Affairs notes quotTechnological innovation often exposes existing law as inadequate to manage changes such innovation createsquotTakeawayamp160 Technological innovation affecting communication will become a constitutional issue in many waysamp160 In the pending Berninger v FCC SCOTUS will decide whether FCC gatekeeper power over new technology for communication over the internet poses an obstruction of first amendment rights amp160Freedom of Speech DecisionsTurner Broadcasting System Inc v FCCamp1601994Turner Broadcasting System Inc v FCC 1997Cable company Turner Broadcasting attempted to overcome the quotmustcarryquot rules of the 1992 Cable Television Consumer Protection and Competition Act by arguing loss of freedom of speech in both casesamp160 Justice Kennedy authored the decisions in which he joined a mix of liberal and conservative court members in ruling against Turner Broadcasting amp160Both decisions sided with the government39s right to protect public interest by insuring diverse sources of broadcast programmingTakeawayamp160 Just a question Will a new swing voter emerge to conserve the mustcarry rules as being important to the public interestUnited States v Playboy Entertainment Group 2000As a staunch free speech advocate it should come as no surprise that Justice Kennedy authored this decision in favor of Playboyamp160 Once again the majority was comprised of liberal and conservative justicesamp160 They decided that a section of the 1996 Communications Decency Act passed by Congress wasn39t quotthe least restrictive means to block the transmissionquot of sexrelated programmingTakeawayamp160 The majority noted that customers can tell cable providers to block certain channels but didn39t resolve the issue of signal bleed accidental transmission of blurry images and audioTax Decisionamp160South Dakota v Wayfair 2018Ecommerce is redefining interstate commerce for purposes of taxationamp160 A longestablished understanding of the Constitution39s quotDormant Commerce Clausequot has prohibited taxes of enterprises that aren39t physically present in a stateamp160 But a mostly conservative group of justices led by Justice Kennedy reversed former Supreme Court jurisprudence in this case allowing South Dakota to collect sales tax from internet sellers located out of stateTakeawayamp160 Ecommerce has made it difficult for some states to maintain sales tax revenueamp160 States like South Dakota that don39t have income taxamp160rely heavily on sales taxamp160 So SCOTUS stepped in where Congress feared to treadUnreasonable Search and Seizure DecisionCarpenter v United States 2011Justice John G Roberts provided the swing vote in this decision by the court39s liberal block related to armed robberyamp160 The constitutional issue concerned whether itamp160abridged the Fourth Amendment for a government agency to seizeamp160cell phone records based on those calls39 connections to specific cell towersamp160 In his dissent Justice Kennedy asserted that collection of certain types of business records is lawfully compelled and that cellsite records should be no differentTakeawayamp160 As the free multimedia judicial archive Oyez notes quotexpectations of privacyquot in the digital age don39t line up neatly with legal precedents such as thirdparty informationOn the HorizonWhat39s ahead for Supreme Court cases affecting the media and telecommunications when Justice Kennedy departsamp160 Whether the court swings further to the right as President Trump hopes may not be as predictable as some news reports stateHistory showsamp160that new justices sometimes don39t behave as expected by the presidents who nominate themamp160 According to Politico Republican presidents from the mid20th century forward quotpicked a remarkable number of justices who turned out to be either moderate or just as frequentlyamp160squarely in the liberal campquotHere39s something more predictableamp160 Theamp160SCOTUS docket of pending cases and other hotbutton cases that might be appealed present at least two major communications industry issues on the horizon for legal decision cable mustcarry rules and the growth of monopolies among ISPsamp160 These include ATampampT Inc v FCC and the recent Justice Department challenge to the District of Columbia decision affirming the right of ATampampT and TimeWarner to mergeMeanwhile Justice Kennedy may be watching the news but he mayamp160also may be indulging his hobbies of reading history and Shakespeare playing golf and tennis and swimmingamp160 And being a man who prizes politeness and preservation of constitutional liberties he also may be hoping for America to become great again by regaining civility and toleranceEditor39s Noteamp160 Jack Myers received support in researching and preparing this commentaryPhoto creditamp160Academy of Achievement

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How Justice Kennedy's Decisions Shaped Media and Telecom

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Jack Myers

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