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Brett Kavanaugh’s Discouraging Record on the First Amendment and 'Commercial Speech'

Where does Supreme Court nominee Brett Kavanaugh stand on the First Amendment?

C-SPANC-SPANWhere does Supreme Court nominee Brett Kavanaugh stand on the First Amendment? Free speech advocates are likely to be disappointed by the answer when they examine Kavanaugh's vote in an important 2014 case.

That case is American Meat Institute v. Department of Agriculture. At issue was a federal regulation that forced the meat industry to include "country of origin" information on meat packaging. Under Supreme Court precedent, such regulations of "commercial speech" can only pass constitutional muster if they serve a substantial government interest. For example, as the Court declared in Zauderer v. Office of Disciplinarian Counsel of the Ohio Supreme Court (1985), "the States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading."

In American Meat Institute, a group of livestock producers, feedlot operators, and meat packers challenged the "country of origin" regulation on First Amendment grounds, arguing that it failed under Zauderer because it amounted to compelled speech that did not advance a permissible regulatory goal.

The federal government ultimately prevailed, with a divided en banc panel of the U.S. Court of Appeals for the District of Columbia Circuit rejecting that First Amendment challenge. D.C. Circuit Judge Brett Kavanaugh concurred.

"I agree with the majority opinion that the First Amendment does not bar those longstanding and commonplace country-of-origin labeling requirements," Kavanaugh wrote. To be sure, he conceded, "the Government cannot advance a traditional anti-deception, health, or safety interest in this case because a country-of-origin disclosure requirement obviously does not serve those interests." But instead of stopping there, Kavanaugh then proceeded to find a different way for the government to win. "Country-of-origin labeling is justified," he asserted, "by the Government's historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers, and ranchers." Kavanaugh saw economic protectionism as the way to shield the law from the First Amendment.

For a different perspective on these issues, contrast Kavanaugh's permissive concurrence with the sharp dissent filed by Judge Janice Rogers Brown. "If, as Jeremy Bentham once quipped, a fanciful argument may be dismissed as 'nonsense upon stilts,'" she wrote, "the court's analysis in this case can best be described as delirium on a pogo stick."

In Brown's view, American Meat Institute was a case of judicial abdication. "When we are dealing with fundamental First Amendment protections, as we are here, the burden is on the government, and it is the government that must assert substantial interests," Brown wrote. Yet "not only has [the Department of Agriculture] failed to raise or support any protectionist motive, it has, in fact, consistently denied one."

In other words, Kavanaugh had no business throwing the government a lifeline. As Brown explained, when the First Amendment is at stake, federal judges are supposed to thoroughly scrutinize the law at issue; they are not supposed to bend over backwards in an effort to uphold the restriction.

For free speech advocates, Brett Kavanaugh's concurrence in American Meat Institute represents cause for concern.

Related: Brett Kavanaugh on Obamacare and Judicial Restraint

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  • Rhywun||

    I saw "Brett Kavanaugh's Disco…" on the previous article and got excited. That article sounds more fun than this one.

  • Cy||

    I got really excited with "NFL Player Slams TSA Assholes!"

  • HGW xx/7||

    *unzips* go on...

  • Quixote||

    The article is "fun" in that it is apparently designed to entertain readers, almost in the manner of the foolish propositions we hear people declaiming in the subway and on boxes in the park. Once I heard a man arguing at great length that milk is a food that must not be eaten; that too was "fun." Any fool can see that the so-called "First Amendment" is a nuisance that should be rapidly eliminated from the American system of punishment and control. If any proof were needed of the damage done to law enforcement by this "free speech" nonsense we keep hearing about, it would suffice to take a quick look at the documentation of our nation's leading criminal "satire" case at:

    https://raphaelgolbtrial.wordpress.com/

  • Chipper Morning Baculum||

    Kavanaugh is Karl Rove's buddy. He is already starting to get that Animal Farm pig on two legs look that Rove has perfected.

  • Just Say'n||

    "Kavanaugh is Karl Rove's buddy."

    That is the harshest and most devastating criticism of the justice.

  • Chipper Morning Baculum||

  • Cloudbuster||

    Country of origin labeling is pretty weak sauce as far as first amendment issues goes.

    All things being equal, I'd prefer it not be a government mandate, because I'd prefer almost anything not be a government mandate, but I don't think a very technical decision such as this is really a strong indicator that Kavanaugh is hostile to the first amendment.

  • Shirley Knott||

    The reasoning seems way too deferential to a wide range of government "interests" that seem inimical to limited government.
    I'm not thrilled, but it could be worse.

  • John||

    If this is the worst that Reason can come up with, I think Kavanugh is going to be a pretty good justice.

  • sparkstable||

    As far as 1A issues go... I'd agree with you. But if you look at the judge's reasoning and theory, be it the 1A or any other he poses a huge danger to individual rights.

    He pulled a John Roberts.

  • hello.||

    No. John Roberts pulled a Brett Kavanaugh. Kavanaugh ruled that the anti-injunction act prevented the court from even hearing the challenge to the PPACA and then nevertheless went on to deliver a 50 page legal reasoning about all of the ways the law could potentially be saved with creative legal interpretation. Roberts lifted the language from Kavanaugh's ruling almost word for word in the SCOTUS decision.

  • BYODB||


    He pulled a John Roberts.


    Seems sort of like it, but not completely.

    It's not really the judges job to figure out a way to 'fix' the legislation to make it work for the government. In this case, it would appear that it wasn't that unusual of a decision since it's also not uncommon to force businesses to say a whole shit ton of things they might not way to say. RE: Every labeling requirement in the state of California.

  • John||

    This is why millions of people are going to die if Kavanaugh is confirmed to the court.

    The same millions of people who died because we pulled out of the Paris accord and died again because of Net Neutrality will be forced to die once more because of Kavanaugh.

    It sucks that this guy isn't better on commercial speech. He is also pretty shitty on the 4th Amendment. Sadly, it is picking your poison on these guys. None of them are perfect. The ones who are good on the 4th Amendment tend to be Progs and are awful on pretty much everything else. The ones who are good on guns and commercial speech and other things are often horrible on the 4th Amendment. Kavanaugh is not perfect, but he is good on enough important things to be an improvement over Kennedy and a good thing that he is on the Court.

  • HGW xx/7||

    good thing he is on the court

    I believe "pending" would be a better descriptor. The progs are going bonkers and will throw a temper tantrum for as long as possible. They could drag it out a long while. I actually hope they do, since the closer it gets to November, the more the voters will go into the voting booths with the batshit crazy reactions fresh in their minds.

  • John||

    The Reid going nuclear was a personal insult to the Republicans in the Senate. They don't really care about the country or adhering to any principles. But they do have egos. And this is one time that they are actually going to go balls out and run over the Progs because Reid made it personal. There is really nothing the Progs can do. He will be on the court before October.

  • hello.||

    God you're a retard. The Republicans aren't going to use the nuclear option. Not least of which because McConnell despises Trump and will do literally anything in his power to embarrass him on this issue. As it is there are at least half a dozen Republicans who may not support this nomination. And when McConnell finally gets to return to his much-beloved role as minority leader in November the point will be moot.

  • Migrant Log Chipper||

    It's your fantasy, we'll stay out of it.....by the way, goodbye hello.

  • NashTiger||

    What color is the sky in your world?

  • Just Say'n||

    There are a lot of skinny jeaned toughies opposing this pick for reasons they don't understand beyond a Vox headline

  • UltraModerate||

    "...batshit crazy reactions..."

    Like leaving a SCOTUS seat empty for a year? Because that did nothing to hurt the Republicans, and it won't hurt the Dems either.

  • General_Tso||

    Dying ain't much of a livin', boy.

  • Libertymike||

    The best one liner evah, not just in Clint's filmography.

  • Johnimo||

    It's a good one, no doubt. Personally, I liked the following in response to the Kid's statement that "I guess they had it coming."

    "We've all got it comin', kid."

  • MarkLastname||

    The irony I guess is that you, not Root, are the one shitting his pants here. Any criticism of anything ever done by anyone within 8 degrees of Trump makes you go apeshit it seems.

  • John||

    The irony here is that below I say the following

    I think Trump may have fucked this one up. He might not be a bad justice. Justice Penaltax is usually pretty good. But, when push comes to shove, this guy will fold like a chair and side with his social class and circle over whatever is right. You watch.

    So are you that fucking stupid or do you just not know how to read? Seriously, you just post talking points up here without really thinking much. Considering how stupid you appear to be, that is probably a good move for you.

  • DajjaI||

    I like Judge Brown. Can we swap him out for her?

  • Juice||

    ferealz

  • Migrant Log Chipper||

    was thinking the same thing

  • DesigNate||

    Plus, she provides the added bonus of watching the Democrats show just how racist and sexist they really are in the confirmation hearings.

  • Ken Shultz||

    If Susan Collins or Murkowski or some other weirdo Republican senator fails to vote for Kavanaugh, there probably won't be another nominee confirmed before the midterms. Kavanaugh may have been selected specifically because his pro-life credential are so soft (he says he'd keep Roe v. Wade), that Republicans in bluish states like Collins, et. al. can support him without paying much of a price

    Trump isn't a libertarian.

    The Republicans in the senate are not libertarians.

    The Democrats are openly hostile to libertarian ideas.

    Why would we expect to get a libertarian?

    Opposing Kavanaugh only to have Trump nominate someone that can be confirmed by a Democrat controlled Senate is strategically stupid from a libertarian perspective--even if Kavanaugh isn't what you like on the First and Fourth Amendment. If the next SC nominee is confirmed by a Democrat controlled Senate, we might be lucky to get someone who just thinks that hate speech isn't free speech.

  • John||

    If Collins or Murkowski vote against him, that will make life unbearable for Red State Democrats. If Red State Democrats vote against him and he is still confirmed, everyone will forget it by election day. But if Collins or Murkowski vote against him, that gives the Red State Dems the deciding votes and will mean voters will hold them responsible if he isn't confirmed.

  • MarkLastname||

    One wonders if the battle over a court seat could drag on for 2 years.

  • Juice||

    the Government's historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers, and ranchers.

    Man, that is some strict construction.

  • Just Say'n||

    We need country of origin labeling. When I go to my artisanal deli to buy prosciutto they sometimes try to pawn off Canadian prosciutto as "imported". I don't want cured ham from junior America.

    Support Kavanaugh and defend overpriced artisanal delis!

  • Chipper Morning Baculum||

    Canadian prosciutto? Isn't that just dried out Canadian bacon?

  • Just Say'n||

    Do you even artisanal, brah?

    *adjusts black rimmed glasses*

  • Benitacanova||

    We do need country of origin labels, but our global masters say no.

    In 2015 Canada and Mexico sued us in the "World Court" claiming our meatpacking laws discriminated against their inferior products. And they won.

    NAFTA means we all get our meat packed, and like it.

  • EscherEnigma||

    This makes me think of those lettuce recalls from a few months back.

    The only way folks knew whether their already-bought lettuce was "safe" or not was where it was from.

    So I'm pretty skeptical that "where did this come from" *isn't* a legitimate government interest, and pretty curious why the meat packers felt it was an undue hardship.

  • TW||

    Good point, I'm not seeing much of a hardship here and I can easily see how if there was a need for a recall (say that a disease that affected cows broke out in Brazil and we learned about it after meat had already been shipped to the United States), knowing the country of origin would help expedite the recall without having to recall all beef everywhere.

  • MarkLastname||

    Because customers may discriminate based on where it's from (e.g. idiotic "buy local" or 'buy American" sentiments) which can add costs for meat packers.

    And knowing where your lettuce came from almost certainly wouldn't make a big difference in the probability of getting tainted lettuce.

  • EscherEnigma||

    If customers would discriminate against your business if they were fully informed is not a good argument for withholding information.

    It's kind of the opposite, in fact.

  • jph12||

    "So I'm pretty skeptical that "where did this come from" *isn't* a legitimate government interest, and pretty curious why the meat packers felt it was an undue hardship."

    Many meat packers process cows that were born and raised in different countries (the same plant processes Mexican, American, and Canadian cows). The old system, which the meat packers didn't object to, allowed the meat packers to label all of their beef with something along the lines of "processed in a plant that processes Mexican and American cows." The new system, which the meat packers objected to, requires each package to label only country where that specific cow was raised and processed. This is obviously a much more difficult labeling requirement.

    Notably, this requirement was not imposed by the section of the USDA charged with regulating slaughterhouses and ensuring the health and safety of food. They had no problem with the old way of labeling, which is actually safer because most of the diseases associated with meat products is a result of cross-contamination, not something in the meat itself. So if there is a problem with Mexican cows, you are better off knowing that your all-American beef was processed in a plant that also processes Mexican cows than you are under the new labeling system.

  • Migrant Log Chipper||

    Gee, you'd think food companies would have an interest in their supply chain obviating the need for another useless government agency and stupid labelling regulations...….oh, wait.

  • Juice||

    Ok, I get him now. And have developed a new distaste for him.

    — He grew up in Bethesda, Md., in the Washington, D.C., suburbs. His mother was a public school teacher who went on to become a prosecutor and judge in Maryland.

    — He met his wife, Ashley Estes, when she was personal secretary to President George W. Bush while Kavanaugh was also working in the White House. Currently, she is Chevy Chase Village (Md.) Section 5 town manager.
  • Chipper Morning Baculum||

    When I heard his mother was a prosecutor, I knew we were in trouble.

  • John||

    A school teacher who became a prosecutor. That is quite a devilish combination. Let's just hope this guy doesn't have mommy issues.

  • Rhywun||

    The very first words out of the Fox newsreader's mouth were "He is the ultimate DC insider". So, yeah.

  • John||

    All of those things make me think he is another Roberts. I don't trust anyone whose social and family life is that tied to Washington DC to give him a lifetime appointment on the Court. At some point, he will have to make a hard decision and his desire to remain in the good graces of his social circle will cause him to fold. Anyone who is a town manager in Chevy Chase is going to be the kind of person who thinks Progressives are good well meaning people and preferable to non Progressives who are not from his class.

    I think Trump may have fucked this one up. He might not be a bad justice. Justice Penaltax is usually pretty good. But, when push comes to shove, this guy will fold like a chair and side with his social class and circle over whatever is right. You watch.

  • Rhywun||

    At least another slot will likely open up very soon.

  • John||

    If RBG finally keels over, the Progs are going to go catatonic. I am starting to think he should have gone with the Catholic broad. She seems a bit more independent and more likely to have some balls than this guy.

  • Steve-O||

    Do you think RBG's slot will open up? If so, who do you think her slot will open for? I mean, who's going to fill that slot? And will she open it up voluntarily, or will it open on its own after she dies?

  • Juice||

    Not just tied to DC, but the country club suburbs of DC. And not just that, but he seems to be, comes from, and wants to be with, the "class president" or "HOA chairman" type of personality within that social stratum. BARF!

  • John||

    Barf is right.

  • Libertymike||

    How does the nomination of a man with an Ivy pedigree, who has spent his entire professional life in the public sector while sojourning on the Potomac jibe with draining the swamp?

    In so many words, former PA Senator, Rick Santorum, said as much last night on Chris Cuomo's show.

    Like it or not, the nomination is a big, fat FYTW to a substantial percentage of the President's base.

  • Don't look at me.||

    They are all swamp creatures.

  • John||

    Pretty much that Mike. This is a disappointing pick by Trump. It is not because this guy's paper trail is that bad. it isn't. it is because this guy's background makes it almost certain that he is totally out of touch with the rest of the country and cravenly ambitious.

  • Libertymike||

    Brett K appears to be likeable and he conducted himself well last night. I did find myself chuckling at the Coach K line and the line about the daughter who likes to talk - both were well delivered.

    Given the Ivy pedigree, how will the Rev. Kirkland spin this?

  • John||

    I wouldn't even pretend to try and understand that kind of stupid. The best thing to do is just stay away from it.

  • Rhywun||

    +1 user filter on greasonable

  • NashTiger||

    Don't you go and summon He Who Shall Not Be Named Excepting the Parody Account That Is 1 Letter Off

  • Migrant Log Chipper||

    Doubt many of Trump's base are any more libertarian inclined than your average prog. Just like progs they take their cue from issues like abortion and trannies in bathrooms.

    Seems like Gorsuch is about as good as we will get wrt skepticism about increasing government power. And Thomas among the holdovers. He's better than a wise Latina whose whole existence is about justifying expanding government when lefties are ruling the roost.

  • DajjaI||

    Popehat says his meat is kosher.

  • John||

    Dopehat is an elitist moron.

  • DajjaI||

    And he will be the first to defend your right to say it.

  • flatdarkmars||

    That language about "longstanding and commonplace" regulations is similar to some of his opinions on firearms laws. It seems that if the government violates a constitutional right, and gets away with it for long enough, then it becomes permissible in Kavanaugh's view, by dint of being "longstanding and commonplace".

  • sparkstable||

    I'm surprised no one has made a bigger issue out if this. It is a fundamental flaw in his legal theory that makes him and his ideology antithetical to a principled ethical justice based limited government.

    It is illogical and inconsistent and therefore arbitrary. And arbitrary is by definition not justice.

  • Jerryskids||

    In Brown's view, American Meat Institute was a case of judicial abdication. "When we are dealing with fundamental First Amendment protections, as we are here, the burden is on the government, and it is the government that must assert substantial interests," Brown wrote. Yet "not only has [the Department of Agriculture] failed to raise or support any protectionist motive, it has, in fact, consistently denied one."

    In other words, Kavanaugh had no business throwing the government a lifeline. As Brown explained, when the First Amendment is at stake, federal judges are supposed to thoroughly scrutinize the law at issue; they are not supposed to bend over backwards in an effort to uphold the restriction.

    Isn't that exactly what Roberts did with the "penaltax" decision on Obamacare - despite the fact that the President and the Congress kept insisting the mandate wasn't a tax, Roberts decided it was?

  • Robert||

    And he was right.

  • hello.||

    Roberts copped his opinion in that case almost entirely from Kavanaugh's ruling. So yes.

  • Lost in the Woods||

    If this is the worst of Kavanaugh's 'offenses', then perhaps we should be quite happy with this selection. Given that there are very few libertarians anywhere in the white house or senate, this is likely as good as can be hoped for. And I shudder at the thought that HRC might have had the chance to make this pick.

  • sparkstable||

    Seeing how some of the other potential picks were better... I don't see how you can argue this was "as good as can be hoped for." It's bad... plain and simple.

    It may be BETTER than Kennedy was... so an improvement, sure. But that is not the same as being "good".

    If I have a grand total of $1 wealth today, but $2 tomorrow... I am better tomorrow, but still really freaking poor. Things would not now be "good."

  • Lost in the Woods||

    Maybe others on Trump's list would have been better, maybe not. When scrutinized further, I suspect there would have been other red flags from those candidates as well. In any case, whoever he selected would have to be confirmed by a senate with a razor thin R majority, including several R senators who could easily vote the other way. I suspect that, behind the scenes, votes were 'counted' and Kavanaugh was deemed the best of the options. Maybe someday there will be a libertarian majority in the senate and we will get better judges. In the meantime, this feels like a win. But who knows, maybe the senate will surprise. And judges themselves seem full of surprises once confirmed.

  • shane_c||

    Where does he stand on strip clubs, porn, violent video games... That how you tell if he's good on the 1A. I don't think he's going to be very good.

    I dont think hes going to be good on separation of church and state either. I read he supported students using the school loudspeaker for prayers at football games.

  • wreckinball||

    There is no separation of Church and State. There is a prohibition of he state establishing a religion. Saying a prayer over the loud speaker is not that.

    Next

    Another gem from lack of Reason

  • wreckinball||

    It's going to be shit show but around September 28 McConnell will just call a vote.

    They can't stop it. All Rs will vote yes and the Ds on the hot seat will also vote yes. Pence's vote wont be needed.

  • wreckinball||

    Also Meat labels? Seriously. I think its safe to say he would not force folks to "bake the cake". I was kinda shocked that Kennedy didn't jump sides on that one.

  • What's the frequency, Kenneth?||

    Kavanaugh basically squealed "tradition!" That sort of logic would have kept slavery intact (and probably did, until the Constitution was amended.) How sad!

  • NoVaNick||

    So, Kavanaugh will probably be a mixed bag, like most other justices.

  • tzx4||

    With the likes of Google, Facebook, other social media, and all the multitudinous trackers on websites (I see 11 trackers on this webpage, BTW) my concern about government snooping had dropped a few notches, relatively speaking. This may be a wrong guess, but if government know far less about me than Google, I would not be surprised.

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