First Amendment Implications of Nomination of Judge Neil Gorsuch for Supreme Court

by Jackson Walker
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While President Trump’s Supreme Court nominee Judge Neil Gorsuch of the Tenth Circuit is expected to face withering scrutiny over the politically incendiary topics of abortion and gun rights, Jackson Walker attorney Shannon Teicher suggests that the nominee’s judicial record on the First Amendment is also vitally important given the new administration’s already strained relationship with the media.

Ms. Teicher, a media law partner at Jackson Walker, says that although issues such as abortion and gun rights tend to break down along party lines, First Amendment questions are much more nuanced, and rarely indicate partisan philosophies. Because of this, she says it is intriguing to see Judge Gorsuch as President Trump’s nominee to fill Justice Antonin Scalia’s seat.

“Like many of the other judges who were on Trump’s announced short-list, there is not a lot of case history involving Judge Gorsuch related to First Amendment issues.” But she notes that in 2011’s Bustos v. A&E Networks, a case in which a prison inmate sued for defamation because he only affiliated with a particular gang but was not a member as A&E reported, Judge Gorsuch ruled that the statement was substantially true and affirmed dismissal of the lawsuit.  In doing so, he explored the historical importance of truth as a defense and called it a “First Amendment imperative.”

However, she notes that in the year prior, “Judge Gorsuch offered an interesting concurrence in Mink v. Knox, in which the court ruled a college student’s parody of a professor was protected speech.”  Gorsuch noted the U.S. Supreme Court had not yet ruled on whether parody is actionable where the plaintiff is neither a public figure nor the speech a matter of public concern.  He believed “reasonable minds can and do differ” on the issue, so it was best to avoid such “thickets.”  Citing an opinion by then-Judge Roberts of the D.C. Circuit (now Chief Justice of the Supreme Court), Gorsuch explained he would only decide what is necessary and nothing more.

“Such careful parsing may well be a preview of the type of measured approach Judge Gorsuch would take if confirmed to the U.S. Supreme Court,” says Teicher. Given what she currently knows about Gorsuch, she admits to being “cautiously optimistic that he would be favorable on free speech issues before the Court.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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