Monthly Archives: March 2017

By Hillel ItalieThe Associated Press

NEW YORK Whenever Donald Trump fumes about "fake news" or labels the press "the enemy of the people," First Amendment scholar David L. Hudson Jr. hears echoes of other presidents but a breadth and tone that are entirely new.

Trump may not know it, but it was Thomas Jefferson who once said, "Nothing can now be believed which is seen in a newspaper," said Hudson, a law professor at Vanderbilt University.

"But what's unusual with Trump is the pattern of disparagement and condemnation of virtually the entire press corps. We've had presidents who were embittered and hated some of the press Richard Nixon comes to mind. ... But I can't think of a situation where you have this rat-a-tat attack on the press on virtually a daily basis, for the evident purpose of discrediting it."

Journalism marks its annual Sunshine Week, which draws attention to the media's role in advocating for government transparency, at an extraordinary moment in the relationship between the presidency and the press.

First Amendment advocates call the Trump administration the most hostile to the press and free expression in memory. In words and actions, they say, Trump and his administration have threatened democratic principles and the general spirit of a free society: The demonizing of the media and emphatic repetition of falsehoods. Fanciful scenarios of voter fraud and scorn for dissent. The refusal to show Trump's tax returns and the removal of information from government websites.

And in that battle with the Trump administration, the media do not have unqualified public support.

According to a recent Pew survey, nearly 90 percent of respondents favored fair and open elections while more than 80 percent value the system of government checks and balances. But around two-thirds called it vital for the media to have the right to criticize government leaders; only half of Republicans were in support. A recent Quinnipiac University poll found that Americans by a margin of 53-37 trust the media over Trump to tell the truth about important issues; among Republicans, 78 percent favored Trump.

"We're clearly in a particularly polarizing moment, although this is something we've been building to for a very long time," says Kyle Pope, editor in chief and publisher of the Columbia Journalism Review, a leading news and commentary source for journalism.

"I think one of the mistakes the press made is we became perceived as part of the establishment. And I think one of the silver linings of the moment we're in is that we have a renewed sense of what our mission is and where we stand in the pecking order, and that is on the outside, where we belong."

Hudson, ombudsman of the Newseum's First Amendment Center, says it's hard to guess whether Trump is serious or "bloviating" when he disparages free expression. He noted Trump's comments in November saying that flag burners should be jailed and wondered if the president knew such behavior was deemed protected by the Constitution (in a 1989 Supreme Court ruling supported by a justice Trump says he admires, the late Antonin Scalia).

Hudson also worries about a range of possible trends, notably the withholding of information and a general culture of secrecy that could "close a lot of doors." But he did have praise for Trump's pick to replace Scalia on the court, Neil Gorsuch, saying that he has "showed sensitivity" to First Amendment issues. And free speech advocates say the press, at least on legal issues, is well positioned to withstand Trump.

"We have a really robust First Amendment and have a lot of protections in place," says Kelly McBride, vice president of The Poynter Institute, a nonprofit journalism education center based in St. Petersburg, Florida. "That doesn't mean that attempts won't be made. But when you compare our country to what journalists face around the world, I still think the U.S. is one of the safest places for a journalist to criticize the government."

The First Amendment, which states in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press," is far broader and more uniquely American than when ratified in 1791.

At the time, free expression was based on the legal writings of Britain's Sir William Blackstone. The First Amendment protected against prior restraint, but not against lawsuits once something was spoken or published. Truth was not a defense against libel and the burden of proof was on the defendant, not the plaintiff. And the Bill of Rights applied to the federal government, but not to individual states, which could legislate as they pleased.

The most important breakthrough of recent times, and the foundation for many protections now, came with the New York Times Co. v. Sullivan case of 1964.

The Times had printed an advertisement in 1960 by supporters of the Rev. Martin Luther King Jr. that noted King had been arrested numerous times and condemned "Southern violators of the Constitution." The public safety commissioner of Montgomery, Alabama, L. B. Sullivan sued for libel. He was not mentioned by name in the ad, but he claimed that allegations against the police also defamed him. After a state court awarded Sullivan $500,000, the Times appealed to the Supreme Court.

Some information in the ad was indeed wrong, such as the number of times King was arrested, but the Supreme Court decided unanimously for the Times. In words still widely quoted, Justice William Brennan wrote that "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." He added that a libel plaintiff must prove "that the statement was made ... with knowledge that it was false or with reckless disregard of whether it was false or not."

"It was breathtakingly new," First Amendment attorney Floyd Abrams said of Brennan's ruling. "It was an extraordinary step the court was taking."

But freedom of speech has long been championed more in theory than in reality. Abraham Lincoln's administration shut down hundreds of newspapers during the Civil War. Woodrow Wilson championed the people's "indisputable right to criticize their own public officials," but also signed legislation during World War I making it a crime to "utter, print, write, or publish" anything "disloyal" or "profane" about the federal government. During the administration of President Barack Obama, who had taught constitutional law at the University of Chicago, the Wilson-era Espionage Act was used to obtain emails and phone records of reporters and threaten James Risen of The New York Times with jail.

Predicting what Trump might do is as difficult as following his views on many issues. He often changes his mind, and contradicts himself.

During the campaign last year, he spoke of changing the libel laws to make it easier to sue the media. But shortly after the election, he seemed to reverse himself. He has said he is a "tremendous believer of the freedom of the press," but has worried that "Our press is allowed to say whatever they want and get away with it."

Trump's disparagement of the media has been contradicted by high officials in his administration. Secretary of Defense James Mattis said recently that he did not have "any issues with the press." Vice President Mike Pence was an Indiana congressman when he helped sponsor legislation (which never passed) in 2005 that would protect reporters from being imprisoned by federal courts. In early March, he spoke at a prominent gathering of Washington journalists, the Gridiron Club and Foundation dinner.

"Be assured that while we will have our differences and I promise the members of the Fourth Estate that you will almost always know when we have them President Trump and I support the freedom of the press enshrined in the First Amendment," he said, while adding that "too often stories make page one and drive news with just too little respect for the people who are affected or involved."

Originally posted here:
'Polarizing moment' for the First Amendment - Rockford Register Star

Harpo Productions/Oz WorksLast week, a Georgia state judge dismissed a lawsuit filed against talk-show host Dr. Oz over claims made on his show last year that much of the olive oil sold in U.S. grocery stores is fraudulent. The suit alleged that Oz wrongly disparaged the corrupt olive oil industry.

The lawsuit was brought against Oz by an industry trade group, the New Jersey-based North American Olive Oil Association (NAOOA), under Georgia's so-called veggie libel law. It's one of about a dozen states with these awful lawswhich allow a party to sue for damages if a person allegedly disparages their agricultural productson the books.

Oz won in court thanks to Georgia's anti-SLAPP law. Such laws gives people who speak out on issues of public concern a useful tool to counter lawsuits that seek to intimidate them into silence. ("SLAPP" is an acronym that stands for "strategic lawsuit against public participation.")

Several domestic olive oil brands had also been sued alongside Oz.

Fraud in the olive oil business is, in fact, a longstanding problem. A 1917 Missouri court case, Lo Buono v. V. Viviano & Bros Macaroni Mfg. Co., centered on fraudulent olive oil, as did a 1950 federal case involving another producer. In the past decade, The New Yorker has dedicated at least two lengthy pieces to the issue of fraudulent olive oil. And Congress recently held hearings on the issue.

The fictional Corleone crime family in Mario Puzo's The Godfather used its olive oil business, Genco, as a cover for its criminal activities. That depiction of mafia involvement in the olive oil trade isn't far from the truth in some cases. Facing U.S. tax fraud charges in 1951, mafia boss and drug trafficker Francisco Paolo Coppola claimed to earn much of his income as an olive oil producer.

How does such fraud play out? An olive oil might be misbranded, claiming to be of higher quality than it really isfrom an earlier pressing, for exampleor to be from one country but hail from another. Or it might be adulterated, containingfor examplea mix of olive oil and other less expensive food oils.

In fact, the NAOOA, which represents many foreign olive oil producers, whose products make up the bulk of the olive oil sold in the United States, is itself keen to identify and prevent such fraud in the industry. A 2015 report issued by the group, for example, raises "significant questions" about the quality of California olive oils tested by NAOOA.

The NAOOA clearly understands the value of free speech.

Listen, I think Oz is a quack. Forbes writer Kavin Senapathy, whose writings expose quackery around food, was probably right when she called Oz's olive oil segment as "yet another gag in his lineup of shady antics."

But it's also another reminder of attacks on Dr. Oz's First Amendment rights.

In 2014, Oz was called before Congress to explain his claims about a variety of foods and supplements he claims have particular health-promotion qualities.

"Oz has absolutely zero responsibility to hold mainstream views and every right to make money off of those views," I wrote in a 2014 piece defending Oz's free-speech rights and attacking Congress for attempting to intimidate him into silence. "His popularity has absolutely no impact on his right to say whatever the hell he wants to say. And being hauled before Congress for saying what he wants places a tremendous burden on his, your, and my First Amendment rights."

As a reminder, the First Amendment protects speech regardless of its subjective value. It protects speech by neo-Nazis and Black Muslims, pornographers and religious zealots, and climate change alarmists and deniers alike. And your right to speak freely is stronger today thanks to a renowned medical doctor who freely espouses many views that appear, by any reasonable measure, to be objectively false.

Critics of Oz are free to rail against his idiocies. I hope they'll continue to do so. But when courts and lawmakers attempt to intimidate him into silence, they are more apt to turn Dr. Oz into a First Amendment hero than expose what he truly is.

Link:
Dr. Oz Rebuffs First Amendment Challenge by Olive Oil Industry ... - Reason

Introduction

On the 2016 campaign trail, then-candidate Donald Trump promised he would pick a Supreme Court nominee in the mold of the late Justice Antonin Scalia. To this end, President Trump narrowed his candidate shortlist to three federal appellate judges who had the approval of the Heritage Foundation and Federalist Society, 1Open this footnote Close this footnote 1 Ed Kilgore, Trumps Supreme Court Pick Is Due Next Week, With 3 Conservatives Still in the Running, N.Y. Mag. (Jan. 24, 2017, 3:04 PM), http://nymag.com/daily/intelligencer/2017/01/trumps-scotus-short-list-down-to-3-conservatives.html. Open this footnote Close and whom the press perceived as conservative. 2Open this footnote Close this footnote 2 See, e.g., id. Open this footnote Close Of the candidates, several scholars and commentators labeled Judge Neil M. Gorsuch of the Tenth Circuit the judge whose jurisprudence most closely tracks Justice Scalias. 3Open this footnote Close this footnote 3 See Oliver Roeder & Harry Enten, Trump Picks Neil Gorsuch, A Scalia Clone, for the Supreme Court, FiveThirtyEight (Jan. 31, 2017, 8:04 PM), http://53eig.ht/2jSTQAs. Open this footnote Close Indeed, several journalists and scholars argued Judge Gorsuch could prove to be significantly more conservative than the late Justice. 4Open this footnote Close this footnote 4 See Alicia Parlapiano & Karen Yourish, Where Neil Gorsuch Would Fit on the Supreme Court, N.Y. Times, https://nyti.ms/2jSTKsD (last updated Feb. 1, 2017). Open this footnote Close

We argue that Judge Gorsuchs characterization as a more conservative Justice Scaliahowever true it may be as a general matteris not particularly helpful in understanding the role a potential Justice Gorsuch would play in the field of free expression. In broad strokes, Judge Gorsuchs opinions in key First Amendment expression cases have fallen, like Justice Scalias, within the mainstream. In the same vein as Justice Scalias frequent votes with more liberal Justicesoften as part of large majoritiesin free expression cases, 5Open this footnote Close this footnote 5 See, e.g., Snyder v. Phelps, 562 U.S. 443, 446 (2011) (8-1 decision). Open this footnote Close Judge Gorsuchs free expression opinions have been either unanimous opinions for three-judge panels or separate concurrences with unanimous judgments. 6Open this footnote Close this footnote 6 See infra Part I. Open this footnote Close Usually, these opinions have solidified protections for expression. 7Open this footnote Close this footnote 7 See infra Part I. Open this footnote Close

Significant differences remain between Judge Gorsuch and Justice Scalia. Justice Scalias trademark originalism has barely registered in Judge Gorsuchs free speech jurisprudence. 8Open this footnote Close this footnote 8 See infra Part II.A. Open this footnote Close Justice Scalia himself did not use originalism to resolve First Amendment questions as much as he might have. By one account, he used it only about 30% of the time. 9Open this footnote Close this footnote 9 Derigan Silver & Dan V. Kozlowski, The First Amendment Originalism of Justices Brennan, Scalia and Thomas, 17 Comm. L. & Poly 385, 402 (2012) (finding that only 30.4% of Justice Scalias freedom of expression opinions through the 2010 Term used originalism). Open this footnote Close But that is still a lot of casesand a lot more than Judge Gorsuchs 0%. 10Open this footnote Close this footnote 10 See infra Part II.A. Open this footnote Close Moreover, a clear minimalist thread runs through Judge Gorsuchs decisions, 11Open this footnote Close this footnote 11 See infra Part II.B. Open this footnote Close while Justice Scalia was not known for his minimalism. 12Open this footnote Close this footnote 12 See Robert Anderson IV, Measuring Meta-Doctrine: An Empirical Assessment of Judicial Minimalism in the Supreme Court, 32 Harv. J.L. & Pub. Poly 1045, 1064-71 (2009) (evaluating Justices minimalist and maximalist tendencies and finding that Justices Scalia and Thomas were maximalist outliers relative to the rest of the Court). Open this footnote Close

Ultimately, even though Judge Gorsuchs First Amendment methodology may diverge from Justice Scalias, we conclude Judge Gorsuch is unlikely to work a sea change in this area of the Courts jurisprudence.

To understand Judge Gorsuchs potential impact on free expression jurisprudence as a Justice, we must look first to his work in this area as a judge. We begin in Part I with an overview of Judge Gorsuchs published free expression opinions. In Part II, we examine Judge Gorsuchs originalism and minimalism. In Part III, we look at Judge Gorsuchs substantive vision for what types of expression the First Amendment protects.

I. Freedom of Expression Cases

Judge Gorsuch has authored five published opinions implicating First Amendment expression issues. These cases have dealt with defamation (twice); 13Open this footnote Close this footnote 13 Bustos v. A & E Television Networks, 646 F.3d 762, 762 (10th Cir. 2011); Mink v. Knox, 613 F.3d 995, 1012 (10th Cir. 2010) (Gorsuch, J., concurring). Open this footnote Close the Petition Clause, 14Open this footnote Close this footnote 14 Van Deelen v. Johnson, 497 F.3d 1151, 1153 (10th Cir. 2007). Open this footnote Close retaliation, 15Open this footnote Close this footnote 15 Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1325 (10th Cir. 2007). Open this footnote Close and campaign finance. 16Open this footnote Close this footnote 16 Riddle v. Hickenlooper, 742 F.3d 922, 930 (10th Cir. 2014) (Gorsuch, J., concurring). Open this footnote Close Judge Gorsuch wrote the controlling opinion in three of these cases. In the other two, Judge Gorsuch joined the majority in the judgment but wrote separately to reject portions of the majoritys reasoning as unnecessary.

A. Defamation

Judge Gorsuch has written two notable opinions involving constitutional limits on liability for defamation. In Bustos, Judge Gorsuch addressed a prisoners defamation claim against a television network. 17Open this footnote Close this footnote 17 646 F.3d at 763. Open this footnote Close Writing for a unanimous panel, Judge Gorsuch decided Bustos on state law grounds, holding the plaintiff could not prove the statement at issue was materially false. 18Open this footnote Close this footnote 18 Id. at 767. Open this footnote Close But Judge Gorsuchs opinionwhich he listed as a significant constitutional opinion[] in his Senate Judiciary Committee questionnaire 19Open this footnote Close this footnote 19 Neil M. Gorsuch, United States Senate Committee on the Judiciary: Questionnaire for Nominee to the Supreme Court 36-37 (2017), https://www.judiciary.senate.gov/imo/media/doc/Neil%20M.%20Gorsuch%20SJQ%20(Public).pdf. Open this footnote Close highlighted the issues constitutional and historical underpinnings. 20Open this footnote Close this footnote 20 See Bustos, 646 F.3d at 763-64. Open this footnote Close Judge Gorsuch chronicled the truth defenses origins at English common law, where in a twist worthy of an award from the Circumlocution Office, truth was a defense in civil cases but an aggravating factor in criminal cases. 21Open this footnote Close this footnote 21 Id. at 763. Open this footnote Close He noted that American courts [s]ensibly adopted the English civil approach, which became a First Amendment imperative. 22Open this footnote Close this footnote 22 Id. at 764. Open this footnote Close

In the other defamation case, Mink v. Knox, 23Open this footnote Close this footnote 23 613 F.3d 995, 1012 (10th Cir. 2010) (Gorsuch, J., concurring). Open this footnote Close Judge Gorsuch wrote a concurrence in which he expressed a reluctance to extend protections for defendants too far. Thomas Mink was a university student who published online a satirical editorial column fake-written by Junius Puke, a not-so-veiled reference to a professor, Junius Peake. 24Open this footnote Close this footnote 24 Id. at 998 (majority opinion). Open this footnote Close Someone else might have brushed it off; Peake called the cops. 25Open this footnote Close this footnote 25 Id. Open this footnote Close A criminal libel investigation ensued, deputy district attorney Susan Knox issued a search warrant, the police executed it, and Mink sued. 26Open this footnote Close this footnote 26 Id. at 998-99. Open this footnote Close The district court dismissed Minks claim against Knox, holding in part that Knox was entitled to qualified immunity because it was not clearly established that the column was constitutionally protected speech. 27Open this footnote Close this footnote 27 Id. at 999. Open this footnote Close

The Tenth Circuit reversed, holding that the column was a parody and thus constitutionally protected under clearly established circuit precedent. 28Open this footnote Close this footnote 28 Id. at 1006, 1009, 1011. Open this footnote Close Judge Gorsuch concurred, wanting to avoid what he saw as unnecessary dicta defending that precedent. 29Open this footnote Close this footnote 29 Id. at 1012-13 (Gorsuch, J., concurring). Open this footnote Close

B. Right to Petition

Judge Gorsuch addressed the First Amendments Petition Clause in Van Deelen v. Johnson, where a taxpayer claimed that county officials tried to intimidate him into dropping tax assessment challenges. 30Open this footnote Close this footnote 30 497 F.3d 1151, 1153 (10th Cir. 2007). Open this footnote Close The district court dismissed the suit, holding that the tax challenge was not a matter of public concern and therefore was not constitutionally protected. 31Open this footnote Close this footnote 31 Id. Open this footnote Close Judge Gorsuch, writing for a unanimous panel, rejected the public concern limitation, explaining that the right to petition extends to matters great and small, public and private. 32Open this footnote Close this footnote 32 Id. Open this footnote Close While widely accepted, this position is not entirely uncontroversial. 33Open this footnote Close this footnote 33 See Dobbey v. Ill. Dept of Corr., 574 F.3d 443, 447 (7th Cir. 2009) (criticizing Van Deelen as exceedingly broad[]). Open this footnote Close

C. Retaliation

Judge Gorsuch addressed First Amendment retaliation claims by public employees in Casey v. West Las Vegas Independent School District, which involved a school superintendent who had been fired after pushing her school board to bring the local Head Start program into compliance with federal requirements. 34Open this footnote Close this footnote 34 473 F.3d 1323, 1325-27 (10th Cir. 2007). Open this footnote Close The Tenth Circuit addressed which of Caseys statements she had made as an employee rather than a private citizen; under the then-new Supreme Court precedent of Garcetti v. Ceballos, 35Open this footnote Close this footnote 35 547 U.S. 410, 421-22 (2006). Open this footnote Close the First Amendment does not protect the former class of statements. 36Open this footnote Close this footnote 36 Casey, 473 F.3d at 1328-29. Open this footnote Close Ultimately, Judge Gorsuch, writing for a unanimous panel, held that the portfolio of Caseys duties included advising her superiors and instructing her subordinate, but that she acted as a private citizen when she went around her superiors to complain to the state attorney general. 37Open this footnote Close this footnote 37 Id. at 1329-33. Open this footnote Close

D. Campaign Finance

Judge Gorsuch also addressed freedom of expression in his concurrence in Riddle v. Hickenlooper, although the case primarily dealt with Fourteenth Amendment campaign finance questions. 38Open this footnote Close this footnote 38 742 F.3d 922, 931-32 (10th Cir. 2014) (Gorsuch, J., concurring). Open this footnote Close Plaintiffs challenged a Colorado campaign finance law that functionally allowed major-party candidates to raise twice as much money from an individual donor in a given campaign as third-party, independent, and write-in candidates. 39Open this footnote Close this footnote 39 Id. at 924-25 (majority opinion). Open this footnote Close The panel applied a campaign finance-specific form of heightened scrutiny to strike down the statute. 40Open this footnote Close this footnote 40 Id. at 927-28. Open this footnote Close Judge Gorsuch concurred, agreeing the law was unconstitutional but noting uncertainty about the correct level of scrutiny to apply based on the Supreme Courts campaign finance jurisprudence. 41Open this footnote Close this footnote 41 Id. at 930-33 (Gorsuch, J., concurring). Open this footnote Close

II. First Amendment Style

A. First Amendment Originalism?

Judge Gorsuchs originalism has received significant attention. But it has not been evident in his free expression jurisprudence.

Judge Gorsuch did not rely on originalist analysis in any of the opinions discussed above. The closest he came was in Bustos, where he explored the truth defenses history. 42Open this footnote Close this footnote 42 See Bustos v. A & E Television Networks, 646 F.3d 762, 763-64 (10th Cir. 2011). Open this footnote Close Because the case turned on a state law question, 43Open this footnote Close this footnote 43 See id. at 767. Open this footnote Close there was not much room for originalism. The First Amendments role would have been to constrain state law had it not already been more protective than required. 44Open this footnote Close this footnote 44 Id. at 764. Open this footnote Close Accordingly, Judge Gorsuch used history only to flag the issues constitutional backdrop and to support the idea that the American defamation tort is intended to protect the plaintiffs interest in her public reputation. 45Open this footnote Close this footnote 45 See id. Open this footnote Close

More surprising is Van Deelen, 46Open this footnote Close this footnote 46 Van Deelen v. Johnson, 497 F.3d 1151 (10th Cir. 2007). Open this footnote Close which extended the right to petition without discussing its original understanding. There, the Supreme Court had not definitively resolved the First Amendment issuewhether the right contains a public concern requirementand a series of district court cases had come out the other way. 47Open this footnote Close this footnote 47 See id. at 1156-58. Open this footnote Close Yet Judge Gorsuchs only historical reference came after he decided that question. 48Open this footnote Close this footnote 48 See id. at 1158. Open this footnote Close He argued that the right had been clearly established since the Boston Tea Party, defeating qualified immunity. 49Open this footnote Close this footnote 49 Id. Open this footnote Close And that was it. Indeed, Judge Gorsuch made his key analytical moves on the First Amendment issue without citation. 50Open this footnote Close this footnote 50 See id. at 1156. Open this footnote Close

Even if Judge Gorsuch felt the issue was open and shut, his failure to at least give lip service to originalism is surprising. There is certainly room for an originalist analysis of the Petition Clause, as evidenced by the Justices dueling analyses in Borough of Duryea v. Guarnieri. 51Open this footnote Close this footnote 51 564 U.S. 379 (2011). Open this footnote Close There, writing for a seven-Justice majority, Justice Kennedy conducted an originalist analysis of the right to petition beginning with its origins in the Magna Carta. 52Open this footnote Close this footnote 52 Id. at 394-99. Open this footnote Close Justice Kennedy found that a public concern requirement applies to public employees but hedged on whether it extends beyond the employment context. 53Open this footnote Close this footnote 53 Id. Open this footnote Close Justice Scalia, in reply, invoked originalist evidence to raise doubts about whether lawsuits are protected by the Petition Clause at all and to reject the public-concern requirement outright. 54Open this footnote Close this footnote 54 Id. at 403-07 (Scalia, J., concurring in the judgment in part and dissenting in part). Open this footnote Close Thus, Guarnieri highlights a gap between Judge Gorsuch and Justice Scalia with respect to using First Amendment originalism.

It is possible that Judge Gorsuch could use the extra maneuvering room hed have as a Justice to embrace a more originalist approach, but the First Amendment has not exactly provided fertile ground for originalism. 55Open this footnote Close this footnote 55 See Silver & Kozlowski, supra note 9, at 390-91, 423-24 (discussing the lack of originalist sources and arguing originalism fails to restrain judges in this area). Open this footnote Close And nothing in Judge Gorsuchs record suggests that he desires to revitalize First Amendment originalism.

B. Maintaining Minimalism

Throughout his free expression opinions, Judge Gorsuch has shown a consistent tendency to avoid deciding legal issues unnecessarily. His concurrences in Mink and Riddle sought a more cautious resolution to the case at hand than those provided by the majority opinions. Similarly, his majority opinion in Casey followed a fairly intuitive interpretation of Supreme Court precedent, and he took care to include language indicating the decisions limits.

The Mink panel relied on Pring, a Tenth Circuit precedent directly on point that resolved the key First Amendment issue. 56Open this footnote Close this footnote 56 Mink v. Knox, 613 F.3d 995, 1006-07 (10th Cir. 2010) (citing Pring v. Penthouse Intl, Ltd., 695 F.2d 438, 438-43 (10th Cir. 1982)). Open this footnote Close Judge Gorsuch agreed that Pring controlled but criticized the majority for offer[ing] a lengthy new defense of Pring. 57Open this footnote Close this footnote 57 Id. at 1012 (Gorsuch, J., concurring). Open this footnote Close Asserting that reasonable minds can and do differ about the soundness of [Prings] rule, he raised two potential arguments against it: (1) it might unnecessarily constitutionalize[] limitations that state tort law already imposes; and (2) it might unjustly preclude private persons from recovering for intentionally inflicted emotional distress regarding private matters, in a way the First Amendment doesnt compel. 58Open this footnote Close this footnote 58 Id. Open this footnote Close Judge Gorsuch did not necessarily endorse these arguments, but to avoid these thickets, he demurred from the panels discussion of Pring. 59Open this footnote Close this footnote 59 Id. at 1013. Open this footnote Close Indeed, the single most notable aspect of Judge Gorsuchs concurrence may be the language he borrowed from then-Judge Roberts: [I]f it is not necessary to decide more, it is necessary not to decide more. 60Open this footnote Close this footnote 60 Id. (quoting PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment)). Open this footnote Close

Judge Gorsuch also displayed his minimalism in Riddle, where the majority elected to examine a campaign finance statute under Buckley v. Valeo 61Open this footnote Close this footnote 61 424 U.S. 1 (1976). Open this footnote Close heightened scrutiny. 62Open this footnote Close this footnote 62 Riddle v. Hickenlooper, 742 F.3d 922, 927-28 (10th Cir. 2014). Open this footnote Close Judge Gorsuch concurred to observe that while the law was unconstitutional, the appropriate scrutiny tier was uncertain. 63Open this footnote Close this footnote 63 Id. at 930-32 (Gorsuch, J., concurring). Open this footnote Close Like in Mink, Judge Gorsuch noted the lack of definitive Supreme Court guidance on the issue. 64Open this footnote Close this footnote 64 Id. at 931. Open this footnote Close Recognizing the difficulty of the scrutiny question, Judge Gorsuch pointed out that the court neednt resolve it. 65Open this footnote Close this footnote 65 Id. at 932. Open this footnote Close Colorados law failed even under the more relaxed Buckley standard: Buckley requires that contribution limits be designed to ward off corruption, but the challenged law was not. 66Open this footnote Close this footnote 66 Id. at 932-33 (citing Buckley, 424 U.S. at 25-29). Open this footnote Close Judge Gorsuch underscored the decisions narrowness by describing how an alternative regime would survive the Riddle courts reasoning. 67Open this footnote Close this footnote 67 Id. at 933. Open this footnote Close The opinion indicates Judge Gorsuchs desire both to limit the decisions scope and to clarify that the political branches retain the ability to solve the problems campaign finance regulation seeks to address.

Casey presents a different flavor of Judge Gorsuchs minimalism in that he is writing for a unanimous panel, not criticizing the breadth of his colleagues opinion. Casey was primarily concerned with resolving the new question put to courts by Garcetti: When is a government employee speaking pursuant to her official duties, rendering her speech unprotected? 68Open this footnote Close this footnote 68 Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1328 (10th Cir. 2007) (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). Open this footnote Close While Casey did not present the same opportunities as Mink and Riddle to avoid deciding certain legal questions, Judge Gorsuchs opinion has a minimalist hue. Importantly, he makes sure to note the limits of the decision, leaving room for other kinds of public employee whistleblowing. 69Open this footnote Close this footnote 69 Id. at 1331. Open this footnote Close

III. First Amendment Substance

Judge Gorsuchs freedom of expression opinions indicate that he is generally satisfied with the scope of First Amendment protections. While Judge Gorsuch has hinted at some areas where he may favor narrower protections than most judges and others where he may favor more expansive protections, his views occupy the mainstream.

Bustos and Mink exemplify Judge Gorsuchs cautious approach. In Bustos, Judge Gorsuch embraces the First Amendments firm protections against tort liability while counseling judges to avoid taking those protections so far that they create libel-proof plaintiffs. 70Open this footnote Close this footnote 70 Bustos v. A & E Television Networks, 646 F.3d 762, 763-65, 769 (10th Cir. 2011). Open this footnote Close This commonsensical limitation is not the work of a judge itching to undo New York Times Co. v. Sullivan. 71Open this footnote Close this footnote 71 376 U.S. 254 (1964). Open this footnote Close

Mink is perhaps more concerning to those who favor a robust First Amendment. At first glance, Judge Gorsuchs concurrence is a benign call for judicial restraint. 72Open this footnote Close this footnote 72 See Mink v. Knox, 613 F.3d 995, 1013 (10th Cir. 2010) (Gorsuch, J., concurring). Open this footnote Close Considering, however, that all the panel did was straightforwardly apply and explain Pring, 73Open this footnote Close this footnote 73 See id. at 1004-08 (majority opinion). Open this footnote Close Judge Gorsuchs concurrence reads as a nudge toward rolling back Prings parody protections. Judge Gorsuchs stance is hardly the stuff of dystopian novels; he suggests only that private figures might sometimes be able to recover for speech on private matters. 74Open this footnote Close this footnote 74 See id. at 1012 (Gorsuch, J., concurring). Open this footnote Close This view has much in common with Justice Alitos dissent from the Courts extension of First Amendment protection to the Westboro Baptist Churchs picketing at a military funeral 75Open this footnote Close this footnote 75 See Snyder v. Phelps, 562 U.S. 443, 463-64 (2011) (Alito, J., dissenting). Open this footnote Close a case in which Justice Scalia joined all seven other Justices in the majority. 76Open this footnote Close this footnote 76 See id. at 446 (majority opinion). Open this footnote Close

Judge Gorsuch inches instead toward expanded protections in Van Deelen. His rhetoric about the liberties . . . essential to the continuity of our democratic enterprise demonstrates his deep respect for the values at stake. 77Open this footnote Close this footnote 77 Van Deelen v. Johnson, 497 F.3d 1151, 1155 (10th Cir. 2007). Open this footnote Close

Conclusion

Ultimately, we do not expect a potential Justice Gorsuch to advocate any major changes to the Courts First Amendment freedom of expression jurisprudence. Methodologically, he cannot be called a Scalia clone. 78Open this footnote Close this footnote 78 Cf. Roeder & Enten, supra note 3. Open this footnote Close Perhaps most significantly, if you were hoping for a Justice who would open up our libel laws, 79Open this footnote Close this footnote 79 See Hadas Gold, Donald Trump: Were Going to Open Up Libel Laws, Politico (Feb. 26, 2016, 2:31 PM EST), http://politi.co/1QlBCjS. Open this footnote Close Judge Gorsuch is not your man.

* J.D. Candidates, Stanford Law School, 2018.

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Mainstream Jurisprudence and Some First Amendment Problems - Stanford Law Review Online

Jack Greiner 7:04 a.m. ET March 10, 2017

John C. Greiner, attorney for Graydon Head Legal Counsel. He's a commercial litigator with an emphasis on communications and media law. He serves on the firm's Appellate Practice Group. (Photo: Provided, Provided)

The Supreme Court of the United States heard oral argument recentlyon a case that poses the question whether the First Amendment prevents a state from prohibiting a person from using certain designated social media sites. On its face, that question may elicit a question in response, e.g. why would the state prevent anyone from using social media?

And the answer is that North Carolina has a statute that prohibits registered sex offenders from accessing: a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.

The statute defines commercial social networking site as one that:

That definition, of course, sweeps a lot of sites under its reach, including LinkedIn. And that poses a problem for people affected by the law. People use social networking for any number of reasons some trivial, some not. Job seekers no doubt use LinkedIn to search for opportunities and otherwise network. A law that shuts off that resource makes it tough to find work.

The law may or may not be good policy. But that isnt the issue for the Supreme Court. The question there is whether the Constitution permits it. And that decision may depend on a determination about what the statute actually prohibits. In upholding the law, the North Carolina Supreme Court concluded that the law did not restrict expressive conduct. And for that reason, the First Amendment did not invalidate the law, so long as the statute advanced an important government interest and wasnt substantially broader than it needed to be to achieve the interest. Applying this test, the North Carolina Supreme Court concluded that the governments interest in protecting children from sexual predators was important, and the statutes limited application (it didnt bar all internet usage) wasn't overly broad.

But the U.S. Supreme Court may conclude the statute in fact limits expressive conduct. If so, North Carolina would need to prove the ban is the least restrictive means to achieve the interest. That is a tougher test. And the Supreme Court may apply it. Justice Ruth Ginsburg, for example, noted that the First Amendment protects the right not only to speak but the right to receive information. A law barring access to a broad swath of social media sites would bar the receipt of information. If thats the case, and North Carolina has to prove the statute is the least restrictive means it will be in for an uphill fight. That standard allows the opposing party to effectively brainstorm all of the ways the law could be restricted. And if the court agrees with any of the ideas, it can invalidate the law.

We'll see how the Supreme Court resolves this one. There is still the prospect of a 4-4 tie (until Neil Gorsuch is confirmed). That would allow the law to stand. But if the Supreme Court applies the more strict standard, the odds are long for North Carolina.

It goes to show that we never know when the First Amendment will pop up. But it protects people we like as well as people who creep us out.

Jack Greiner is a lawyer with the Graydon Head law firm in Cincinnati and represents Enquirer Media in First Amendment and media issues

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Is there a First Amendment right to LinkedIn? - Cincinnati.com

Vice President Mike Pence's vow to go after WikiLeaks for "one of the most significant compromises of national security in recent memory" could run smack into a First Amendment wall, according to one legal expert.

Pence, in an interview with Fox News' Bret Baier Thursday night, promised that those responsible for the 8,000-plus-file dump of CIA secrets, possibly including WikiLeaks founder Julian Assange, will pay a hefty price.

THE WEEK IN PICTURES

"Assange is clearly a media entity, albeit an unorthodox one... so the thief, the person who hands it to WikiLeaks, is the criminal. Not WikiLeaks."

- Judge Andrew Napolitano

"Trafficking in national security information, as is alleged WikiLeaks has done, is a serious offense," Pence said in an exclusive"Special Report"appearance. "This president and this administration will take it very seriously and use the full force of the law, and the resources of the United States, to hold all of those to account that were involved."

The idea of prosecuting Assange has been floating around since 2010, when WikiLeaks shared a massive trove of U.S. secrets leaked by Army Pvt. Chelsea Manning, then known as Bradley Manning. But to date, Assange has not been charged with any crime related to his website.

SESSIONS ASKS REMAINING 46 UNITED STATES ATTORNEYS TO RESIGN

The Australian-born Assange remains holed up in the Ecuadorean Embassy in London where he was granted asylum in 2012, because of a European arrest warrant stemming from sexual assault allegations made by two women in 2010. Assange denies the claims, but risks deportation the moment he steps foot outside of that embassy.

Prosecuting Assange for the document dump would be an uphill battle for the U.S., according to Fox News Senior Judicial Analyst Judge Andrew Napolitano. In the modern, increasingly broad definition of press, WikiLeaks fits the bill, he said.

"If a stolen document containing state secrets gets into the hands of the press, which is loosely defined as any entity in the business of revealing things, and it is a matter of public interest then it can be exposed with impunity," Napolitano said. "Assange is clearly a media entity, albeit an unorthodox one... so the thief, the person who hands it to WikiLeaks, is the criminal. Not WikiLeaks."

Pence is not the only elected official who would like to see Assange behind bars.

"Assange should spend the rest of his life wearing an orange jumpsuit," Sen. Ben Sasse, R-Neb., said in a Thursday statement. "He's an enemy of the American people and an ally to Vladimir Putin."

Tuesday's leak of more than 8,000 documents touched off an international uproar, as some of the spy agency's most closely guarded cyber tools were allegedly revealed to the world. The CIA, according to the files, has the ability to spy on people through their smartphones and certain TVs and computers, expressed interest in hacking into the electrical systems of automobiles and operates a clandestine hacking sites in Germany.

While the First Amendment may protect Assange, it would not cover anyone who illegally leaked the material to his organization. The FBI has already mounted an investigation aimed at finding the mole who divulged the material or any external hacker who retrieved it from CIA servers.

But U.S. investigators will get no help from Assange on that score.

"We're specialists in source protection," Assange said.

Adding to the difficulty in tracing the source of this leak is the fact that many of the tools the government would have used may have just been shared with the public, at least according to WikiLeaks.

"How can you use your full resources when they were just radically depleted?" cybersecurity expert Gregory Keeley wondered. "This is analogous to the nuclear football codes being posted on Facebook."

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First Amendment could protect Assange despite Pence's vow, says legal expert - Fox News

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The First Amendment Red Herring In The Net Neutrality Debate - Forbes