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.



Federal judiciary declines to extend cameras in courts program

The ability for the public to view the judicial branch in action took a step backward this week. After a four-year pilot program in which 14 federal trial courts voluntarily recorded and published civil proceedings online, the federal judiciary decided to not continue the program. The full report can be found here.

In recommending to maintain the current ban on cameras in federal district courts, the Committee of the Judicial Conference of the United States cited the affect of cameras on witnesses, low levels of interest, and high costs, according to The Washington Post.

Fix the Court, a national organization committed to court access and transparency, responded to the recent decision. Fix the Court’s executive director Gabe Roth said:

“This is a disappointing decision, as the benefits of video-recording federal trials are obvious to any one of hundreds of thousands of people across the country who watched the proceedings recorded during the pilot.”

Unlike federal trial courts, federal appellate courts have progressed in their openness. All 13 federal circuits record audio of court proceedings, and the U.S. Court of Appeals for the Second and Ninth Circuits permit video coverage.

The U.S. Supreme Court continues to remain resistant to public accountability, fighting efforts to open the nation’s highest court. The high court sustains a strict no camera or audio recording policy for members of the public. The Court itself records oral arguments, but the recordings are typically not published until the end of each week. The Court released same-day recording in April 2015 for the Obergefell v. Hodges same-sex marriage case. However, the Court did not publish same-day recordings for the Whole Woman’s Health v. Hellerstedt abortion case earlier in March.


Remembering Justice Antonin Scalia’s First Amendment legacy: Flags, crosses, and video games

The passing of U.S. Supreme Court Justice Antonin Scalia shocked the country Saturday. The conservative titan served on the bench of the nation’s highest court since 1986, earning enthusiastic esteem from the right wing and vigorous vitriol from the left. Quoting my constitutional law professor Paul R. Baier, Scalia “roared from the bench” like a “lion” with stark opinions and scathing dissents rooted in originalism.

Scalia’s approach to the law resulted in a mixed First Amendment legacy. Some of the Justice’s beliefs stunted the growth of speech freedoms, while others expanded speech rights into the 21st century.

For example, Scalia opposed cameras in the Supreme Court, refusing to allow the public to peek inside the most secretive branch of our government.[1] Scalia believed the First Amendment’s Establishment Clause permits government endorsement of religion and dismissed the principle of neutrality.[2]  Scalia cast the decisive vote in carving out an exception for First Amendment rights of students in Hazelwood[3] and voted against student speech rights again in Morse v. Frederick.[4] Scalia repudiated the actual malice standard for defamation of public officials from the seminal case New York Times Co. v. Sullivan.[5] Although not squarely a speech issue, Scalia stood fervent against civil liberties of the LGBT+ community.[6]

However, Scalia’s record contained moments of victory for First Amendment freedoms. In reflecting on the life of one of the most memorable Justices of our lifetime, here are some notable First Amendment opinions from Scalia:

Flag-burning ban infringes First Amendment – Texas v. Johnson, 491 U.S. 397 (1989).

Although Justice Brennan penned the majority opinion, Scalia’s vote in the 5-4 majority that found Texas’ flag-burning law unconstitutional under the First Amendment was crucial during the early days of his tenure on the Court. During oral arguments, Scalia challenged the Dallas County Assistant District Attorney Kathi Alyce Drew, gaining laughter from the audience by asking about the extent to which laws should protect venerated items, such as the state flower. Scalia continued to play the role of the Court’s comedian for the remainder of his Supreme Court stint.

Full opinion here.

Cross-burning ordinance unconstitutional – R.A.V. v. St. Paul, 505 U.S. 377 (1992).

Three years later, the Court confronted another heated First Amendment case. In R.A.V., the Court considered the constitutionality of a St. Paul (Minnesota) ordinance prohibiting the placing of a “symbol, object, appellation, characterization or graffiti” (including burning a cross) when “one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender . . . .” The defendant was charged under the law after making a cross out of broken chair legs and burning the cross inside the fenced yard of a family across the street. Scalia determined the ordinance was facially unconstitutional as a content-based and viewpoint-based restriction on speech.

“Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. . . . The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.”[7]

“Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”[8]

Full opinion here.

Violent video games protected under First Amendment – Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011).

Using his familiar historical approach to the law, Scalia led the Supreme Court in shielding video games under the First Amendment. In striking down a California law prohibiting sale or rental of “violent video games” to minors, the originalist found the law violated the First Amendment because:

“Like protected books, plays, and movies that preceded them, video games communicate ideas—and even social message—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”[9]

Full opinion here.

Honorable mention: Thermal-imaging is a “search” under the Fourth Amendment – Kyllo v. United States, 533 U.S. 27 (2001).

Although Kyllo is not a First Amendment case, Scalia protected another crucial civil liberty—privacy—in his majority, 5-4, opinion. In this case, the police used a thermal-imaging device to detect marijuana in the defendant’s home. Armed with this new information, the police obtained a search warrant for the defendant’s residence. Relying on the principle that the Fourth Amendment draws “a firm line at the entrance to the house,” Scalia wrote:

“Where, as here, the Government uses a device not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”[10]

Full opinion here.

Scalia’s legacy will survive in both jurisprudence and reputation. His impassioned voice will be heard for generations through oral argument recordings. But the dynamics of the Supreme Court chambers will be forever changed without the roar of the lion called Antonin Scalia.

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[1] See Josh Gerstein, Politico, Scalia: Cameras in Supreme Court would ‘mis-educate’ Americans, July 26, 2012; Jamie Schuman, Reporters Committee for Freedom of the Press, Holding out against cameras at the high court, Spring 2014.

[2] See Americans United for Separation of Church and State, Government’s God: Scalia and the Fraud of ‘Ceremonial Deism,’ February 2016; Rob Boston, Americans United for Separation of Church and State, There He Goes Again: Justice Scalia Continues Attacking Religious Neutrality, Jan. 4, 2016.

[3] Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (holding that school officials can censor a high school sponsored newspaper when there is a reasonable educational justification and the censorship was viewpoint neutral)

[4] Morse v. Frederick, 551 U.S. 393 (2007) (ruling that school officials can prohibit students from displaying certain messages at a school sanctioned event).

[5] New York Times Co. v. Sullivan, 376 U.S. 254 (1964); See Erik Wemple, The Washington Post, Antonin Scalia hates ‘NYT v. Sullivan’, Dec. 4, 2012.

[6] See, e.g.,  Obergefell v. Hodges , 576 U.S. [  ] (2015) (J. Scalia, dissenting) (disagreeing with the majority’s finding that the Fourteenth Amendment requires a state to license same-sex marriages), United States v. Windsor, 570 U.S. [  ] (2015) (J. Scalia, dissenting), Lawrence v. Texas, 539 U.S. 558 (2003) (J. Scalia, dissenting), Romer v. Evans, 517 U.S. 620 (1996) (J. Scalia, dissenting) (comparing homosexuals to murderers, polygamists, and people who beat animals).

[7] Id. at 391.

[8] Id. at 396.

[9] Id. at 2733

[10] Id. at 40.

Fall issue of RCFP’s The News Media and The Law explores newsworthiness in privacy cases, federal legislation benefitting the press

The Reporters Committee for Freedom of the Press (RCFP) recently released its latest edition of The News Media and The Law, the quarterly publication providing legal news and guidance for members of the news media.

In this Fall 2015 edition, the RCFP attorneys tackled numerous issues facing the press, including access to public records, classified records, disclosure of juror names, and drones, among others.

The magazine featured my first two articles published since joining RCFP in September.

One of my articles, promoted on the cover as Privacy vs. News: How do courts decide?, uses the upcoming privacy trial involving the publication of former professional wrestler Hulk Hogan’s sex tape to explore how courts determine what is considered newsworthy.

If a court determines information is newsworthy – or of a “legitimate public concern” – a privacy claim of publication of private facts will be barred. Thus, defining newsworthiness is critical to the result in privacy cases. But what does a court consider when assessing newsworthiness? This question and more is answered in the article, Courts wrestle with defining newsworthiness in privacy cases.

My second article focused on two recent bills before Congress that would benefit journalists and enhance free speech. In the article Camera access, anti-SLAPP laws introduced in Congress, I expanded upon Congressional efforts to permit cameras and other forms of recording into the U.S. Supreme Court with the Eyes on the Court Act.

I then discussed the advantages of the most recent federal anti-SLAPP bill, the SPEAK FREE Act of 2015. This latest attempt to provide the uniform ability to defend against frivolous claims sought to suppress speech has gained support from both sides of the aisle as well as from technology companies and legal scholars.

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Bill introduced to permit cameras in Supreme Court

A bi-partisan group of legislators stood in front the United States Supreme Court on Thursday to introduce the Eyes on the Court Act of 2015. The law would require the United States Supreme Court and other federal appeals courts to broadcast video coverage of court proceedings.

Efforts to open up the most secretive branch of government have failed in the past, but advocates of the bill cite the current mistrust in the Supreme Court and the bipartisan support as reasons why the Eyes on the Court Act could garner momentum.

Additionally, the bill boasts an option for closing proceedings if the broadcast would “violate the due process rights of a party to the proceeding or is otherwise not in the interests of justice.”

Rep. Jerrold Nadler (D-New York), Rep. Gerald Connolly (D-Virginia), Rep. Mike Quigley (D-Illinois), and Rep. Ted Poe (R-Texas) back the bill.

“How is it possible that we can keep up with the Kardashians, but we cannot keep up with the Supreme Court?” Rep. Nadler asked at the press conference in front of the Supreme Court.

Gregg Leslie, legal defense director of the Reporters Committee for Freedom of the Press, and Gabe Roth, executive director of Fix the Court, also attended the press conference. Leslie told the audience studies have shown that cameras do not affect oral argument participants.

The Second and Ninth Circuit Court of Appeals have already successfully implemented broadcasting oral arguments.


Friends of the First Amendment: Amicus briefs filled in anti-bullying, juror transparency, and open Internet cases

In 1967, the Beatles reminded us of a mantra true in both life and law: You get by with a little help from your friends.

In the legal realm, the parties to litigation often lean on allies to craft and file briefs in an effort to convince a court a particular side should prevail. These briefs are called “amicus curiae” briefs or friend-of-the-court briefs. The briefs, submitted by interested organizations, provide supplementary arguments to the court in an attempt to ensure that particular interests are protected. In addition to amicus briefs, amicus letters can be submitted in some states asking a court to review a lower court opinion.

Many organizations, such as the Reporters Committee for Freedom of the Press (my current employer), the American Civil Liberties Union, and the Electronic Frontier Foundation, frequently intervene on behalf of parties to advocate for the First Amendment rights of journalists and the public.

For example, in Elonis v. United States, a First Amendment case before the United States Supreme Court during the 2015 term, a number of amicus briefs were filed, including briefs from the Reporters Committee for Freedom of the Press, Student Press Law Center, Center for Individual Rights, and People for Ethical Treatment of Animals (PETA), among others. Click here to read the Reporters Committee’s amicus brief in Elonis.

Amicus briefs are not only written to the United States Supreme Court (although these garner the most attention). Interested parties can file friend-of-the-court briefs in appellate courts (appeals courts) and district courts (trial courts) at both the state and federal level.

Recently, there have been a number of amicus briefs filed advocating for the First Amendment:

Electronic Frontier Foundation

  • CaseState v. Bishop
  • Court: North Carolina Supreme Court
  • Argument: North Carolina’s anti-bullying statute violates the First Amendment. 1. The law clearly restricts speech, not just conduct. 2. The law is a content-based restriction on speech because it restricts particular kinds of communication.

The Reporters Committee for Freedom of the Press

  • Case: State ex. rel. BuzzFeed v. Cunningham
  • Court: Supreme Court of Missouri
  • Argument: The jury list in the high profile criminal case of Michael L. Johnson, accused of recklessly transmitting the HIV virus, should be unsealed. Jury lists are presumptively open under the First Amendment and their closure can be justified only upon a showing of a compelling governmental interest. The Reporters Committee further argued that providing the press with access to jury lists increases public confidence by ensuring that the judicial process is conducted in the open and by exposing potential corruption.

15 First Amendment and cyberlaw scholars

  • Case: United States Telecom Association v. Federal Communications Commission and United States of America
  • Court: United States Court of Appeals for the District of Columbia Circuit
  • Argument: Defending the FCC’s Open Internet Rules on First Amendment grounds.


Marketplace of ideas: Should the press name shooters? Both sides of debate presented

In Abrams v. United States, Supreme Court Justice Oliver Wendall Holmes, Jr., penned a prophetic phrase that has had a profound impact on our understanding of the First Amendment.

Justice Holmes wrote in his dissenting opinion:

“The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

While writer John Milton and philosopher John Stuart Mill inspired the marketplace of ideas theory in their books Areopagitica and On Liberty, respectivelyHolmes cemented the concept into American legal lore in his Abrams dissent.

Later, Justice William O. Douglas was the first to use the exact phrase “marketplace of ideas” in United States v. Rumely (1953), writing: “Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas.” The term was also promoted in Brandenburg v. Ohio (1969) and Red Lion Broad. Co. v. FCC (1969) (“It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”).

Since then, the concept of the marketplace of ideas has been a long-standing pillar of First Amendment doctrine. Comparing an open discourse of expression and speech to a free economic market, the marketplace of ideas theory holds that an open and robust speech market absent government restrictions results in an unfettered environment where the best ideas and theories rise to the top and the truth is ultimately realized.

Put simply, the marketplace of ideas theory stands for these principles: More speech is better than less speech. Restrictions on speech only curb innovation. More speech allows new ideas to be offered and progress to occur.

Over time, only narrow exceptions to the marketplace of ideas theory have been cemented in United States jurisprudence. Courts have accepted that when there are significant public justifications, minimal government intervention is necessary to maintain public order. Exceptions include defamation, true threats, fighting words, incitement to violence, child pornography, and obscenity.

In honor of the marketplace of ideas, MLonML shares both sides of controversial issues facing the media and the law. Thursday’s tragic shooting at Umpqua Community College in Oregon re-ignited a debate simmering in recent years:

Should the press name those responsible for mass shootings? 

Yes, journalists have a responsibility to name the shooter, writes Kelly McBride of Poynter. McBride argues naming shooters gives people vital context for the story, helps us to identify trends, and decreases misinformation.

No, journalists should not name shooters and give them the glory they often seek, writes Elaine Ambrose of the Huffington Post. Ambrose asserts denying shooters the attention they desire may prevent future killings.

At first they should be named, but then journalists should cease to do so, writes Touré of Vice. Touré says it is necessary to report the name of the shooter within 24 hours after the shooting, but then the naming should end in order to avoid giving celebrity status to the killer.

Mediaite points out CNN’s Anderson Cooper and Fox’s Megyn Kelley are strong supporters of not naming shooters, while CNN’s Don Lemon believes they should be named sparingly.

MLonML hopes to continue presenting both sides of the argument and let the public decide—just how Justice Holmes would have wanted nearly 100 years ago.