Supreme Court and Net Neutrality

Let me give a simple example. The First Amendment gives all of us a right to free speech where the Government cannot deny us, especially political speech. One could generally agree with that.

Now the Government grants exclusive licenses to say a cable company or a wireless company to provide access. Let's wait there a bit and consider a simpler example.

Let us assume I want to give a speech, to let the people know of some Governmental problem for which I seek a remedy. However to do so I need a soap box to stand on, perhaps I am height impaired. But the Government granted the exclusive monopoly to the soap box manufacturer. He refuses to sell me a soap box or even rent one. My speech cannot be accomplished. Has the Government violated my First Amendment right?

Well according the Kavanaugh, the soap box company has the right and not me! This is Jesuitic logic at its best. The soap box company can deny me access because I would violate their rights. You cannot make this up folks.

Now the Judge states:  

The net neutrality rule is unlawful and must be vacated, however, for two alternative and independent reasons. First, Congress did not clearly authorize the FCC to issue the net neutrality rule. Second and in the alternative, the net neutrality rule violates the First Amendment to the U.S. Constitution. Under the Supreme Court’s landmark decisions in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), and Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997), the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market. Here, however, the FCC has not even tried to make a market power showing. Therefore, under the Supreme Court’s precedents applying the First Amendment, the net neutrality rule violates the First Amendment..... In short, although the briefs and commentary about the net neutrality issue are voluminous, the legal analysis is straightforward: If the Supreme Court’s major rules doctrine means what it says, then the net neutrality rule is unlawful because Congress has not clearly authorized the FCC to issue this major rule. And if the Supreme Court’s Turner Broadcasting decisions mean what they say, then the net neutrality rule is unlawful because the rule impermissibly infringes on the Internet service providers’ editorial discretion. To state the obvious, the Supreme Court could always refine or reconsider the major rules doctrine or its decisions in the Turner Broadcasting cases. But as a lower court, we do not possess that power. Our job is to apply Supreme Court precedent as it stands. For those two alternative and independent reasons, the FCC’s net neutrality regulation is unlawful and must be vacated. I respectfully disagree with the panel majority’s contrary decision and, given the exceptional importance of the issue, respectfully dissent from the denial of rehearing en banc.

Now there are these two points. First, Chevron gives the Administrative agencies broad discretion in implementing the law. Kavanaugh seems to see it as quite narrow with ongoing Congressional authorization for every period and comma and colon. Second, the soap box issue is critical. They the ISPs are for the most part monopolies or at least oligopolies. They  control free speech, they delimit free speech. The opinion above is in my opinion without merit. I have previously considered this in detail in a non-Jesuitic manner. My rather Ockhamistic approach uses logic and grammar as clear textual interpretation. The above is in my opinion a clear delimitation of free speech, and is in my opinion a clear breach of the First Amendment.

But it seems the soap box manufacturer's monopolistic lobby has won, for now!