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Will Supreme Court Nominee Brett Kavanaugh Gut Television Broadcasting As We Know It?

On Monday, President Donald Trump nominated Brett Kavanaugh as the next Supreme Court Associate Justice. If he is confirmed, television broadcasters as well as the owners of copyrighted movies and television shows could be in for a gigantic shock to the system.

To understand why, one must appreciate Kavanaugh’s judicial philosophy. Last week in previewing Kavanaugh, we showcased how he was leery of permitting states to dictate how federal courts operate. That could present problems to libel defendants, among others who have been relying on special free speech protection laws like anti-SLAPP statutes. But if Kavanaugh has a signature, it’s the judge’s heavy skepticism of the administration state. He isn’t so quick to rely on government agencies for interpretation of statutes in the absence of clear directive from Congress. What’s more, he thinks it is outside the judge’s purview to consider what makes most policy sense. Rewriting the laws through doctrines is a big no-no for judges in his worldview.  

One of the best examples of how Kavanaugh might act on the Supreme Court is a case that never actually resulted in an opinion. It was also a case that held enormous significance to the television industry. That’s Fox Television Stations v. FilmOn.TV Networks, which was heard at the D.C. Circuit Court of Appeals in March 2017. After the hearing, Neal Katyal, the attorney for the broadcasters not to mention the former Acting Solicitor General, called the two-hour event the “longest oral argument of my life.” This might explain why the broadcasters then chose to settle the case rather than risk a disastrous ruling.

FilmOn is a streamer. It began operations more than a decade ago under billionaire renegade Alki David as a disruptor. For a short while, FilmOn was usurped by

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