Historical Context and Overview
Net neutrality regulations have evolved through legal challenges. The FCC's 2005 Internet Policy Statement set the stage for future debates between freedom and control. In 2010, the FCC issued the first Open Internet Order, which courts rejected in 2014. The FCC then reclassified broadband as a telecommunications service in 2015, placing ISPs under Title II of the Communications Act of 1934.
Originalist thinkers opposed this approach, arguing it infringed on economic freedoms and First Amendment rights. The regulatory landscape has shifted with changing administrations, prompting ongoing debates about governmental authority and ISP power over content delivery.
Chevron Deference and Major Rules Doctrine
Chevron deference, established in 1984, allows courts to defer to administrative agencies' interpretations of ambiguous statutes if reasonable. Judge Kavanaugh challenges this application, particularly for cases with significant economic and political impacts, through the Major Rules Doctrine.
Kavanaugh argues that Congress, not agencies, should make major decisions to preserve separation of powers. He critiques the FCC's attempt to craft broad net neutrality rules without clear congressional sanctions. This stance could limit the FCC's power unless Congress explicitly legislates these changes, potentially reshaping how major economic regulations are enacted.

First Amendment Concerns
Kavanaugh views net neutrality as a constitutional issue where ISPs' editorial discretion clashes with regulation. He argues that forcing ISPs to treat all digital content equally infringes on their First Amendment rights, comparing it to compelling newspapers to print all received letters.
Drawing parallels to the Turner Broadcasting cases of the 1990s, which extended First Amendment protections to cable operators, Kavanaugh contends that ISPs should have similar freedoms in managing their digital offerings. He sees little distinction between cable and internet providers in terms of constitutional protections.
"Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes."
This interpretation frames net neutrality not just as a policy debate but as a constitutional question about balancing regulation with liberty in the digital age.

Comparison with Cable Television
The comparison between cable television operators and ISPs serves as a proving ground for First Amendment principles. The Turner Broadcasting cases extended First Amendment protections to cable operators, validating their right to exercise editorial discretion.
Originalists like Kavanaugh argue that this precedent should apply to ISPs, viewing the freedom to choose and prioritize content as a cornerstone of free expression that transcends mediums. Critics argue that ISPs are fundamentally different from cable operators, functioning more as conduits for data rather than content curators.
This debate raises questions about how far First Amendment rights stretch across the digital frontier and whether technological distinctions should influence constitutional interpretations.
Implications for Separation of Powers
The net neutrality debate highlights tensions in the separation of powers. Ambiguous statutes have allowed regulatory bodies like the FCC to potentially overstep their authority, leading to concerns about preserving the constitutional framework.
Kavanaugh argues that broad interpretations of ambiguous statutes shouldn't allow agencies to make sweeping decisions with significant economic implications. The Major Rules Doctrine serves as a check on agency power, urging Congress to clarify its intent on major issues.
- Balances statutory interpretation with democratic principles
- Questions agency leeway in shaping policy without explicit legislative direction
- Emphasizes the role of Congress in major economic and political decisions
This debate underscores the need to balance statutory interpretation with democratic principles, questioning how much leeway agencies should have in shaping policy without explicit legislative direction.

The net neutrality debate prompts us to consider how to balance regulation with constitutional freedoms in the digital age.
- Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)
- Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997)