SCOTUS nominee Merrick Garland’s record reveals encouraging First Amendment views

Everyone has an opinion about Merrick Garland, President Barack Obama’s nominee to fill the larger than life shoes left in the wake of U.S. Supreme Court Justice Antonin Scalia’s death.

Garland has been considered too liberal, too conservative, and too white. Although many have impressions of Garland’s ideology, the more reliable (although not perfect) way to assess a judge’s views is by his previous record on the bench.

Tom Goldstein of SCOTUSblog authored a general overview of Garland’s record in a fact-intensive piece called The Potential Nomination of Merrick Garland.

More relevant to this website is Garland’s previous decisions on media law and the First Amendment. The Reporters Committee for Freedom of the Press published a comprehensive Report breaking down Garland’s relevant media law decisions during his 17 years on the bench.

Of particular note is Garland’s joining of Judge David Tatel’s dissent in Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2004), arguing for a more expansive reporter’s privilege for journalists held in contempt for refusing to disclose sources who provided them with information related to an investigation into Wen Ho Lee. The majority of the court looked merely to whether the identity of a source went “to the heart of the matter” and whether alternative sources had been utilized. In his dissent of a denial of an en banc rehearing, Garland advocated for a third prong—weighing the public interest in protecting the reporter’s sources against the interest of forcing disclosure.

Garland sided with broad newsgathering rights in Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007) (en banc). The Supreme Court nominee joined Judge Sentelle’s dissent finding that a publisher had a First Amendment defense in releasing information the publisher obtained lawfully even though the source may have unlawfully obtained the information.

In the libel context, Garland found privileges based on a judicial proceeding in Messina v. Krakower, 439 F.3d 755 (D.C. Cir. 2006) and based on self-defense in Washburn v. Lavoie, 437 F.3d 84 (D.C. Cir. 2006).

Under Garland’s watch as chief judge, the D.C. Circuit permitted same-day audio recording access to all hearings.

For more on Garland’s record in these and more First Amendment cases, see the extensive Report from the Reporters Committee.

 

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