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

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