FAN 101.2 (First Amendment News) Judge Garland on the First Amendment: Opinions & Votes   

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Here is an early snapshot of some of Chief Judge Merrick Garland’s opinions and votes in First Amendment free speech cases:

Ruggiero v. Federal Communications Commission (D.C. Cir., 2003, en banc) (joined majority opinion by C.J. Ginsburg denying First Amend. challenge to  restrictions on licenses for low-power radio stations) (separate concurrences by Randolf, J., and Rogers, J., and dissent by Tatel, J.)

— Initiative & Referendum Inst. v. U.S.P.S. (D.C. Cir., 2005) (Garland, J., for the Court) (sustaining First Amendment challenge of U.S. Postal regulation prohibiting solicitation of signatures outside post offices).

— Thompson v. District of Columbia (D.C., Cir., 2005) (Tatel, J., for majority joined by Garland, J., with Edwards, J., concurring) (reinstated plaintiff’s First Amend. claim that he was fired for exercising his free-speech rights) (NB: Judge Edwards’ concurrence: “given the posture of this case, it would appear that the disposition of the First Amendment claim may dispose of the entire case.”)

Lee v. Dep’t of Justice (D.C. Cir. 2005, en banc) (per curiam,  Garland, J., dissenting from the denial of rehearing en banc) (Garland: “The only way to render the reporter’s privilege effective in the face of Privacy Act claims is to include the requirement . . . that the court “weigh[ ] the public interest in protecting the reporter’s sources against the private interest in compelling disclosure,” Zerilli, 656 F.2d at 712.”)

— Boehner v. McDermott (D.C. Cir, 2007, en banc) (Randolph, J., majority, with Sentelle, J., dissenting joined by Garland, J. & others)

Commentary:

  • Reporters Committee (2015): (“In the dissent joined by Judge Garland, Judge Sentelle wrote that “the issue is: ‘Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?’” Judge Sentelle wrote that he would answer that question “in the negative,” and that the U.S. Supreme Court decision in Bartnicki v. Vopper (2001), which was decided after the first appeal in this case, made clear that such action should not be punished.”

— National Association of Manufacturers v. Taylor (D.C. Cir., 2009) (Garland, J., unanimous: 3-0)

Commentary:

  • Richard Hasen, “Judge Merrick Garland: A Moderate Liberal on Election Law Issues, With Questions About Boldness,” Election Law Blog, March 17, 2016 (The “NAM decision . . . carefully applies precedent, and is not reluctant to uphold disclosure requirements in the face of unsubstantiated claims of harassment. the judge also signed a 2008 decision, Shays v. FEC, which required the Federal Election Commission to craft tougher regulations to implement the campaign finance law.”)

— SpeechNow.org v. Federal Election Commission (D.C. Cir.,2010, en banc) (Sentelle, C.J., unanimous: 9-0)

(Oral arguments audio)

Commentaries:

  • HasenJudge Merrick Garland” (“my view is that a Justice Garland would be moderately liberal on election law issues, probably voting with the four more liberal Justices in most election cases.” . . . .”we should not read too much into Judge Garland’s vote in the SpeeechNow case, the case which established Super PACs. As I explained that unanimous ruling was compelled by the Supreme Court’s Citizens United decision.”)
  • Damon Root, “Merrick Garland on Citizens United, the First Amendment, and Campaign Finance Regulation” (“Notably, the D.C. Circuit rejected the FEC’s attempt to distinguish Citizens United, which struck down an expenditure limit, from the SpeechNow case, which dealt with a contribution limit. In other words, the D.C. Circuit had an opportunity to accept the federal government’s narrowing analysis of Citizens United and it rejected that narrowing analysis. Among the judges who joined the D.C. Circuit’s opinion in SpeechNow.org v. FEC was Merrick Garland, who is now President Obama’s nominee to replace Justice Antonin Scalia on the U.S. Supreme Court.”)
  • John Light, “Merrick Garland Could Mean a New Chapter in the Fight to Reverse Citizens United,” Moyers & Co., March 16, 2016 (“Garland’s decision on SpeechNow does not necessarily indicate how he would vote on a case seeking to reverse Citizens United, should one reach the bench, reformers believe. “We personally think that there’s a lot of daylight between Citizens United and SpeechNow,” said Greytak. Stephen Spaulding, senior policy counsel and legal director at Common Cause, argued that Garland’s ruling could be explained by the fact that federal appeals court judges are bound by Supreme Court precedent. The year SpeechNow came before the DC Circuit, the justices already, through Citizens United, were sending a pretty clear message about how the high court felt about super PAC spending.”)

— American Meat Institute v. U.S. Department of Agriculture (D.C. Cir., 2010, en banc) (Williams, J., Garland, C.J., joining majority, Rogers, J., concurring in part, Kavanaugh, J., concurring in judgment, & Brown, J., dissenting) (Upholding over a First Amend, challenge Ag. Dept. rule requiring labels on meat to identify where the animal was born, raised and slaughtered)

→ (Oral arguments audio)

Commentary:

— POM Wonderful v. Federal Trade Commission (D.C. Cir., 2015) (per Srinivasan, J., unanimous: 3-0) (upholding FTC decision that the juice company made deceptive claims about its drinks’ health benefits)

→ (Oral arguments audio)

Commentaries:

  • Rich Samp, “The D.C. Circuit’s POM Wonderful Decision: Not So Wonderful for FTC’s Randomized Clinical Trial Push” (2015) (“the ruling is far from the sweeping endorsement of FTC advertising-control measures that the Commission might have been hoping for. In particular, the ruling provides little, if any, support for the FTC’s recent assertions that food and dietary supplement manufacturers are largely barred from including health-related claims on product labels unless their claims are supported by randomized and controlled human clinical trials (“RCTs”). To the contrary, the appeals court made clear medical studies that do not meet RCT standards may nonetheless have considerable value, and that the FTC’s regulation of advertising is subject to strict First Amendment limitations. The decision suggests that courts may be very reluctant to uphold the FTC’s application of RCT standards to claims that a product promotes general health and nutrition, as distinct from claims that a product is effective in preventing or curing specific diseases.”)

— Wagner v. Federal Election Commission (D.C. Cir., 2015) (Garland, J., unanimous: 3-0)

→ (Oral arguments audio)

Commentary: 

  • Hasen, “Judge Merrick Garland” (“the way that Judge Garland wrote the decision indicates that he accepts Congress’s role in crafting reasonable campaign finance regulations aimed at protecting government interests. Judge Garland could have written the opinion in a reluctant way, noting that Supreme Court cases like Citizens United and McCutcheon may have undermined the constitutionality of total bans on contributions by any class of contributors.”)

Hasen on Garland & Citizens United:

“The harder question is what a Justice Garland would do, if faced on the Supreme Court with the opportunity to overturn Citizens United. On the merits, I have little doubt he would have been in the dissent in the original Citizens United case. But the question is one of stare decisis (respect for precedent) now. Would he be willing to overturn such a case, just a few years after the controversial ruling? My guess is that his would be a struggle for him, less about the merits of the case and more about the proper role of the Justice (particularly if he becomes the new swing Justice) on a Court that is ideologically and politically divided.” (Source: HasenJudge Merrick Garland“) 

Reporters Committee releases report on Judge Garland’s First Amendment and Freedom of Information decisions (2015)

 FAN 101.1:  “Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

See also Tom Goldstein, “The Potential Nomination of Merrick Garland,” SCOTUSblog, April 26, 2010

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