Brett Kavanaugh and Tech: A Supreme Court Analysis

Kavanaugh's Concurrence in Packingham v. North Carolina: Social Media as the Modern Public Square

In the 2017 case Packingham v. North Carolina, the Supreme Court struck down a state law barring registered sex offenders from using social media. Justice Kavanaugh, who joined the majority, wrote a separate concurrence that distills his philosophy on digital platforms. He agreed that social media sites are the modern public square for speech, protected under the First Amendment, but emphasized that these platforms remain private property with the right to moderate content. This distinction foreshadowed later debates on platform liability and content moderation.

Kavanaugh's concurrence noted that while citizens have a constitutional right to access these forums, private companies retain autonomy to enforce their own rules. That balancing act—embracing digital spaces as essential civic infrastructure while deferring to corporate governance—has reappeared in subsequent cases involving Twitter, Facebook, and Section 230. It is a view that resists sweeping government mandates, aligning with his broader judicial restraint.

"Social media platforms are the modern public square, but they are also private property. The First Amendment does not compel them to host every speaker." — Justice Kavanaugh, Packingham concurrence

This opinion highlights Kavanaugh's early engagement with tech law and sets the stage for his later decisions on data privacy and computer crime.

Van Buren v. United States: Narrowing the Computer Fraud and Abuse Act

In 2021, Kavanaugh authored the 6–3 majority opinion in Van Buren v. United States, a case that reined in the scope of the Computer Fraud and Abuse Act (CFAA). The question was whether a police officer who ran a license plate search for personal reasons—violating his employer's policy—had "exceeded authorized access" under the CFAA. Kavanaugh, applying strict textualism, ruled that the officer did not violate the statute because he accessed data he was allowed to access; only hacking that bypasses technical gates qualifies as a crime.

• The decision defined "exceeds authorized access" narrowly: accessing information for an improper purpose is not the same as accessing information without permission.
• It effectively decriminalized most terms-of-service violations, protecting employees and ordinary users from federal prosecution for minor infractions.
• The ruling had immediate implications for data scraping, cybersecurity investigations, and the liability of online services—reducing the threat of broad CFAA claims.

Van Buren is Kavanaugh's most consequential tech opinion, limiting federal hacking law and preventing it from becoming a catch-all for digital misbehavior. His textualist reasoning—focusing on the plain meaning of the phrase "so accessed"—reflects a philosophy that refuses to stretch criminal statutes beyond their written boundaries. The decision impacted subsequent cases involving tech export controls and data sharing practices, as companies now face lower litigation risk from employee misuse.

FCC v. Prometheus Radio Project: A Dissent Unpacking Kavanaugh's Tech Deregulation Bent

In 2021's FCC v. Prometheus Radio Project, the Court upheld the FCC's media ownership rules, but Kavanaugh dissented sharply. He argued that the D.C. Circuit had been too skeptical of the agency's light-touch regulatory approach, and that the FCC should have been allowed to further deregulate cross-ownership limits. This dissent illuminates Kavanaugh's pro-deregulation leanings, which extend to the broader tech sector.

Kavanaugh criticized the lower court for applying a "reflexive skepticism" to agency expertise, advocating for greater deference to executive branch decisions. His stance suggests he would favor minimal government intervention in internet governance. This is particularly relevant for pending cases on net neutrality, antitrust enforcement against Big Tech, and the future of Section 230. As digital markets evolve, Kavanaugh's deregulatory impulse may shape how the Court reviews FCC and FTC actions.

"The D.C. Circuit's reflexive skepticism of the FCC's expertise undermines the deference owed to agencies under settled law." — Justice Kavanaugh, Prometheus dissent

This dissent, while not a tech case per se, reveals a judicial philosophy that champions regulatory humility—a theme likely to recur in technology disputes.

Key Takeaways

• Textualist methodology: Kavanaugh consistently applies plain-meaning textualism to tech statutes, narrowing federal criminal laws like the CFAA and resisting expansive interpretations.
• Balanced First Amendment view: He recognizes social media as essential public forums but respects platforms' private property rights, avoiding absolute free speech mandates.
• Deregulatory orientation: His Prometheus dissent signals support for lighter government oversight of media and technology markets, favoring market solutions over regulation.
• Van Buren as precedent: The ruling limits federal hacking law and protects online services from broad liability based on contract breaches—a landmark for cybersecurity and data privacy.
• Consistent skepticism of government power: Across his opinions, Kavanaugh resists expanding federal authority into digital spaces, often leaving room for corporate autonomy.
• Future impact: His votes on Section 230, antitrust, and data privacy will depend on statutory interpretation and factual context, but themes of narrowed liability and deregulation are likely to persist.