FAN 143 (First Amendment News) The Turner Broadcasting case, Justice Kennedy & one of his then law clerks — Neil Gorsuch
Vancouver, Canada. Neil Gorsuch clerked for Justice Anthony Kennedy (earlier for Justice Byron White) during the 1993-1994 Court Term.
In that Term the Court decided Turner Broadcasting System, Inc. v. FCC (June 27, 1994). Justice Kennedy wrote the majority opinion in Turner. The issue in Turner was whether the Cable Television Consumer Protection and Competition Act’s “must carry” rules violated the First Amendment. On that score, Justice Kennedy’s opinion stressed, among other things, that “the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation, whatever its validity in the cases elaborating it, does not apply in the context of cable television.” Thus, “the FCC’s oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations.”
Of course, we do not know what, if any, involvement young Gorsuch might have had in the case as one of Justice Kennedy’s law clerks. What we do know, however, is that dating back to his college days at Columbia, Neil Gorsuch had an abiding interest in the First Amendment. (Professor Eugene Volokh clerked at the Court that same Term; he worked for Justice Sandra Day O’Connor.)
- In a 1994 law review article, Professors Monroe Price and Donald Hawthorne wrote: “Driven by its fixation on content-neutrality, the Turner Broadcasting Court, far from recognizing the importance of the distinction between commercial and non-commercial broadcasters, deemed it immaterial and practically non-existent. . . . We suggest that Justice Kennedy’s rigid doctrinal approach can potentially endanger all substantive government regulation of the electrnic media, especially measures designed to aid non-commercial programmers.”
- “The Court in Turner,” wrote Henry Geller, “determined that the Red Lion scheme is confined to broadcasting. Cable and other new electronic delivery systems . . . come under traditional First Amendment jurisprudence. That is, they are to receive strict scrutiny First Amendment protection when the government regulation is content-based and to come under the intermediate O’Brien standard when the regulation is content-neutral.”
- Robert Corn-Revere, who wrote on the case in 1994, noted that the “debate in Turner Broadcasting regarding the applicable First Amendment standard for cable television brought to a head an ongoing dispute of the past two decades.” Analyzing the opinion, he added that Turner “did not end the debate, [but] may mark a judicial shift toward a more traditionalist approach to electronic means of communication.” That shift came a few years later in United States v. Playboy Entertainment Group, Inc., which Corn-Revere argued. The Turner case formed a key part of Playboy’s opposition to the government’s claim that broadcast indecency standards should be applied to cable. The Court agreed with Playboy’s position and struck down the law (Section 505 of the Telecommunications Act of 1996), focusing on the technological difference “between cable television and the broadcasting media, which is the point on which this case turns.”
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→ See also: FAN, #141: Judge Neil Gorsuch — the Scholarly First Amendment Jurist
→ Alex J. Harris, who clerked for Judge Gorsuch on the 10th Circuit, is now clerking for Justice Kemmedy.
Senate Judiciary Committee Members
The Senate Judiciary Committee’s hearings on Judge Gorsuch are set for Monday, March 20th. Senator Chuck Grassley (R-Iowa) chairs the Committee. Those on the committee are:
Republicans (11): Orrin G. Hatch, Lindsey Graham, John Cornyn, Michael Lee, Ted Cruz, Ben Sasse, Feff Flake, Mike Crapo, Tom Tills, & John Kennedy.
Democrats (9): Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Al Franken, Christopher A. Coons, Richard Blumenthal & Mazie Hirono
Tomorrow in LA: First Amendment Salon on Judge Gorsuch & the First Amendment
It will the twelfth First Amendment Salon and the first one of 2017; it will address the topic of Judge Neil Gorsuch and freedom of expression. The salon dialoge will feature Jim Newton (acclaimed author & editor, editorial page, L.A. Times) interviewing Eugene Volokh (noted First Amendment scholar and Gary T. Schwartz Distinguished Professor of Law, UCLA). Kelli Sager (First Amendment specialist & partner, Davis Wright Tremaine) will introduce the discussants.
Tomorrow’s salon will take place at the Los Angeles offices of Davis Wright Tremaine. As always, the salon is co-hosted by Floyd Abrams Institute for Freedom of Expression at Yale Law School.
Live webcasts will be to the D.C. and New York offices of Davis Wright Tremaine with the video of the event to be posted soon on FIRE’s online First Amendment Library (see additional links to the salons below)
Call for Proposals: FIRE’s 2017 Faculty Conference (travel, lodging & honoraria) Read More