FAN 141 (First Amendment News) Judge Neil Gorsuch — the Scholarly First Amendment Jurist

Free speech works; it works better than any form of censorship or suppression; and in exercising vigorously, the truth is bound to emerge. — Neil Gorsuch (1986)

Last Saturday’s march was more a demand for the overthrow of American society than a forum for the peaceable and rational discussion of these people and events. — Neil Gorsuch (1987)

Judge Neil Gorsuch

Seattle — “Judge Gorsuch is a serious, accomplished jurist who will defend a robust First Amendment.” There is truth there, in David Keating‘s assessment of the First Amendment opinions of Judge Neil Gorsuch. As the epigraph quote reveals, there was a free-speech sentiment in the mix of the man that traced back at least to his college days at Columbia University. To draw again from that time: Columbia  University “has a responsibility to make the political, philosophical, and ethical experience here as diverse and varied as the cultural and ethnic experience,” he wrote.

If one scans what we now know of the arc of Judge Gorsuch’s views on the First Amendment and free expression, it is readily apparent than he has long and informed commitment to the First Amendment. Should that continue, and it seems likely to, he could well become the First Amendment point-person on the Court.

Wasn’t the First Amendment written for the explicit purpose of protecting dissenting voices, allowing them the freedom to ‘recruit’ others to their opinions? Don’t we call this the marketplace of ideas — implying that ideas are bought by converts and sold by believers, thus using the very language of recruitment? Free speech is dangerous to dictators because it promises to recruit opposition; effective free speech is the best recruiting policy. — Neil Gorsuch (1987)

The Judge as Scholar 

Whatever one thinks of Judge Gorsuch’s jurisprudence overall and his free-speech jurisprudence in particular, which is sketched out below, one thing is undeniable: he is jurist who values the scholarly virtues and someone who appreciates the value of nuance.  Moreover, there is a welcome clarity in his First Amendment free-expression opinions, which is unusual in a decisional law world bogged down by unnecessary ambiguity.

Professor Eugene Volokh (who co-clerked with Gorsuch at the Supreme Court) agrees: “Neil Gorsuch is an excellent judge, who consistently produces readable, careful, thoughtful, even scholarly opinions.”

Only in an atmosphere where all voices are heard, where all moral standards are openly and honestly discussed and debated, can the truth emerge. — Neil Gorsuch (1987)

Highlights of Free-Speech Opinions Authored by Judge Gorsuch 

Right of Petition: “We write today to reaffirm that the constitutionally enumerated right of a private citizen to petition the government for the redress of grievances does not pick and choose its causes but extends to matters great and small, public and private. Whatever the public significance or merit of Mr. Van Deelen’s petitions, they enjoy the protections of the First Amendment.” (Van Deelen)

More on the Right of Petition: “[T]he right of a private citizen to seek the redress of grievances is not limited to matters of ‘public concern . . . .” (Van Deelen)

The Promise of Self-Government: “The promise of self-government depends on the liberty of citizens to petition the government for the redress of their grievances. When public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise.” (Van Deelen)

Right to Petition & the Sons of Liberty: “to petition the government for the redress of tax grievances . . . has been with us and clearly established since the Sons of Liberty visited Griffin’s Wharf in Boston. Defendants respond by pointing us again to the line of cases from Kansas district courts, arguing that it ‘muddied the water’ sufficiently that a reasonable official would not have known that private citizens have a First Amendment right to petition on private as well as public matters. But every case discussing the public concern test in the Supreme Court has made pellucid that it applies only to public employees.” (Van Deelen)

Public Employess & Matters of Public Concern: “The public concern test . . . was meant to form a sphere of protected activity for public employees, not a constraining noose around the speech of private citizens. To apply the public concern test outside the public employment setting would require us to rend it from its animating rationale and original context.” (Van Deelen)

Campaign Contribution Cases: “political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate—both expressly protected First Amendment activities.” (Riddle)

Level of Scrutiny in Campaign Contribution Cases: “the Court has yet to apply strict scrutiny to contribution limit challenges—employing instead something pretty close but not quite the same thing.” (Riddle)

First Amendment & Equal Protection Intersection: “Of course, all these teachings have come in the context of First Amendment challenges to contribution limits—and in this appeal we are asked to decide a Fourteenth Amendment claim. In the Fourteenth Amendment’s equal protection context, the Supreme Court has clearly told us to apply strict scrutiny not only to governmental classifications resting on certain inherently suspect grounds (paradigmatically, race) but also governmental ‘classifications affecting fundamental rights.'” (Riddle)

Defamation: “Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.” (Bustos)

Defamation & Misstatements: “But to say that the misstatement must be material only raises questions of its own — material to whom? And for what purpose? The answer to these questions takes us back to and can be found in the interest the American defamation tort is intended to protect — the plaintiff’s public reputation. Because this is the particular purpose the defamation tort is aimed at, we assess the materiality of a misstatement by comparing the damage it has done to the plaintiff’s public reputation to the damage the truth would have caused. . . . By requiring a significant impact on the plaintiff’s public reputation when compared to the truth, the material falsehood requirement works as a screen against trivial claims.” (Bustos)

Parody & Defamation: “[Per the law in our Circuit,] the First Amendment precludes defamation actions aimed at parody, even parody causing injury to individuals who are not public figures or involved in a public controversy.”  (Mink)

Parody & Matters of Private Concern: “[T]he Supreme Court has yet to address how far the First Amendment goes in protecting parody. And reasonable minds can and do differ about the soundness of a rule that precludes private persons from recovering for reputational or emotional damage caused by parody about issues of private concern. One might argue, for example, that such a rule unnecessarily constitutionalizes limitations that state tort law already imposes. . . . Or that such a rule may unjustly preclude private persons from recovering for intentionally inflicted emotional distress regarding private matters, in a way the First Amendment doesn’t compel. See, e.g., Catherine L. Amspacher & Randel Steven Springer, Note, Humor, Defamation and Intentional Infliction of Emotional Distress: The Potential Predicament for Private Figure Plaintiffs, 31 Wm. & Mary L.Rev. 701 (1990); Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L.Rev. 601, 662 (1990) (arguing that the First Amendment does not “absolutely protect[] all verbal means of intentionally inflicting emotional distress, all forms of racial, sexual, and religious insults, so long as the offending communications do not contain false factual statements”).” (Mink)

“He was not an ideologue,” said M. Adel Aslani-Far, a former writer and editor for the [Columbia Spectator]. “At his core was that things should be thought through and presented and argued, not in a confrontational sense, but in the lawyer-judge sense.”

 First Amendment Free-Speech & Right of Petition Opinions Authored by Judge Gorsuch

  1. Riddle v. Hickenlooper, 742 F. 3d 922 (10th Cir., 2014) (Gorsuch, J. concurring)
  2. Bustos v. A & E Television Networks, 646 F.3d 762 (10th Cir. 2011) (libel and privacy)
  3. Mink v. Knox, 613 F.3d 995 (10th Cir. 2010) (Gorsuch, J. concurring) (searches of work product)
  4. Van Deelen v. Johnson, 497 F. 3d 1151 (10th Cir. 2007)

Free Expression-Related Opinion Authored by Judge Gorsuch 

  1. A.M. v. Holmes850 F.3d 1123 (10th Cir., 2016) (Gorsuch, J., dissenting) (contesting validity of arrest of 7th-grade student who traded fake burps in class)

 Free-Speech-Related Opinions in Which Judge Gorsuch Joined

  1. Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) (sex offender disclosure law uphelod over 1-A challenge)
  2. Cory v. Allstate Ins.583 F.3d 1240 (10th Cir., 2009) (denying defamation claim)
  3. Meshwerks, Inc. v. Toyota Motor Sales USA, Inc, 528 F. 3rd. 1258 (10th Cir., 2008) (applying “idea/expression dichotomy” in copyright law case)
  4. Alvarado v. KOB-TV, 493 F.3d 1210 (10th Cir. 2007) (rejecting emotional distress & privacy claims)
  5. Anderson v. Suiters, 499 F.3d 1228 (10th Cir. 2007) (rejecting right of privacy claim against media Ds.)

The above compilation was based in part on the case listings and analysis contained in David Keating’s Make the First Amendment Great Again? Trump’s Potential Supreme Court Nominees’ Views on Free Speech, Center for Competitive Politics.

Commentators on Judge Gorsuch & His Free-Speech Jurisprudence

Marjorie Heins

Marjorie Heins: “However questionable his views may be on other civil rights and civil liberties issues, Judge Gorsuch’s opinions have demonstrated a firm commitment to First Amendment freedom of speech.”

“President Trump, who has frequently displayed his hostility to free speech and who reportedly has a very short attention span, probably did not read Judge Gorsuch’s First Amendment opinions; if he had, he might not have nominated him.”

David Keating

David Keating: “Judge Gorsuch’s record suggests he will be a strong defender of free speech rights if confirmed to the Supreme Court. He wrote or joined opinions on a wide variety of topics related to free speech, including campaign finance, petition clause and defamation cases. Each time, he ruled for free speech. He applies real scrutiny in constitutional challenges and is a terrific writer. Not only are his opinions a joy to read, they are clear.”

“It’s ironic that President Trump nominated a judge who wrote or joined four opinions in cases brought against the media. Each time Gorsuch ruled for the media defendants.”

News Items & Commentaries re Judge Gorsuch & Free Speech

  1. Aidan Quigley, At Columbia, Gorsuch blasted progressive protesters, defended free speech, Politico, Feb. 1, 2017
  2. Reporters Committee for Freedom of the Press, Special report on Supreme Court nominee Neil Gorsuch, Feb. 2017
  3. David Keating, Judge Neil Gorsuch’s First Amendment Decisions Show Respect for Free Speech, The Insider, Jan. 27, 2017

The Court’s 2016-2017 First Amendment Free Expression Docket

Cert. Granted

  1.  Expressions Hair Design v. Schneiderman (oral argument: Jan. 10, 2017)(transcript here)
  2. Lee v. Tam (oral argument: Jan. 18, 2017) (transcript here)
  3. Packingham v. North Carolina (oral argument: Feb. 27. 2017)

Pending Appeals & Petitions & Related Cases*

  1. Republican Party of Louisiana v. FEC
  2. Independence Institute v. FEC
  3. Augsburg Confession
  4. Bondi v. Dana’s Railroad Supply
  5. Scott v. Georgia (The Georgia Supreme Court upheld, in the face of a First Amendment overbreadth challenge, a statute that forbids otherwise-protected sexually related speech to minors if the speaker intends to arouse or satisfy someone’s sexual desire. The Texas Court of Criminal Appeals and the Ninth Circuit Court of Appeals have held such statutes unconstitutional.)

Cert. Denied

  1. Bennie v. Munn
  2. Flytenow v. Federal Aviation Administration
  3. Armstrong v. Thompson
  4. Wolfson v. Concannon
  5. Dart v.
  6. NCAA v. O’Bannon
  7. Mech v. School Board of Palm Beach County
  8. Williams v. Coalition for Secular Government 
  9. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Case: Review denied 

  • Doe v. LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Denied 

  • Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Freedom of Information Act Petition: Pending  

 The Court’s last Conference was on January 19, 2017; the next conference is on February 17, 2017

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Next Scheduled FAN, #142: February 15, 2017

Last Scheduled FAN, #140Will Judge Hardiman be the nominee? A sketch for a First Amendment portrait

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6 Responses

  1. Brett Bellmore says:

    ““However questionable his views may be on other civil rights and civil liberties issues, Judge Gorsuch’s opinions have demonstrated a firm commitment to First Amendment freedom of speech.””

    Seriously, that’s the sort of statement which, properly, ought to be accompanied by citing the areas where the judge has questionable views on other civil rights and civil liberties. I suppose this is a reference to abortion?

    I get the impression that one of the things the left dislikes about Gorsuch is that he’s actually going to be too *good* on civil liberties… there being several the left actually wants curtailed or abolished.

  2. Joe says:

    “there being several the left actually wants curtailed or abolished”

    Yes, the left is upset that Judge Gorsuch is “good” on civil liberties in respect to how conservatives understand how the myriad of debates over this issue should go, this not being the same as wanting them “curtailed” generally. Yes, basic control of one’s body, sexual equality, etc. matter to many liberals. Those more of a conservative bent might care somewhat less for some of those things.

    For instance, conservatives support Gorsuch’s positions on religion, while many liberals believe he mixes church/state too much and his approach to free exercise unduly burdens third parties which is “bad” in respect to burdening civil liberties overall. There is and will be a range of analysis such as these for those who care to read them.

    The meaning of the First Amendment is complex but surely important. For instance, some want to give the government more power to fire members of the bureaucracy”at all” which in practice would burden 1A rights. I agree such a reduction of civil liberties is bad. How he secures the freedom of speech as a whole on the Supreme Court remains to be seen, noting that is but one of many issues. And, conservatives protection of freedom of speech on the Supreme Court has been mixed. For instance:

    “On the other hand, if the Roberts Court’s record is a cause for elation in some First Amendment quarters, then its rulings on student speech (Morse v. Frederick (2007)), government employee speech (Garcetti v. Ceballos (2006)), and prisoner speech (Beard v. Banks (2006), along with its anti-terrorism material support ruling (Holder v. Humanitarian Law Project (2010)), must be cause for warranted discontent.” To state a few areas. If he votes as liberals did on such issues, it would be appreciated.

  3. Joe says:

    “at all” should be “at will”

    The blurb quoted is to be fair vague as blurbs tend to be. So, yes, it would help if more detail is provided. As noted, as opposition to Gorsuch develops, it is.

    • Brett Bellmore says:

      I thought “at all” accurately characterized the viewpoint.

      Anyway, it’s pretty characteristic of the genre that the civil liberties the left doesn’t like don’t even get acknowledges as being civil liberties.

  4. Howard Wasserman says:

    I had a different reaction to Mink. By tying the decision to precedent rather than the correctness of the idea that parody precludes defamation liability, as if that might be an open question for when he reaches SCOTUS and everything is up for grabs.

  5. Linda says:

    Thanks for the information! Great news!