What Gorsuch's Nomination Could Mean for the Media

Almost a full year since the death of Justice Antonin Scalia, the United States is finally one step closer to filling his seat on the Supreme Court.

After saying he was "looking to appoint judges very much in the mode of Justice Scalia" should he be elected President, Donald J. Trump announced his nomination of Colorado appeals court Judge Neil Gorsuch on Tuesday.

Gorsuch has no shortage of qualifications: 10 years serving the U.S. Court of Appeals for the Tenth Circuit, a bachelor's degree from Columbia University, J.D. from Harvard Law and PhD from Oxford University, along with experience as a clerk in the U.S. Court of Appeals D.C. Circuit and for associate justices on the Supreme Court, a partner for litigation powerhouse Kellogg, Huber, Hansen, Todd, Evans & Figel, and a principal deputy to the Associate Attorney General for the U.S. Department of Justice.

Perhaps his most impressive accolade considering the decisive times is his bipartisan support.

But how does he compare to Justice Scalia? Legal experts and pundits seem to agree that if Trump wanted to fill the seat with someone "very much in the mode" of Scalia, he is sticking to his word (much as he is with constructing the Mexican border-wall and banning Muslims, but I digress).

Like Scalia, David G. Savage of the Los Angeles Times writes, Gorsuch is a "well-respected conservative who believes judges should decide cases based on the law as it was understood when passed, not on how they think it should be. He’s a clear, impassioned writer, albeit without Scalia’s flair for biting sarcasm." The New York Times' Adam Liptak drew similar comparisons, writing Gorsuch shares Scalia's "legal philosophy, talent for vivid writing and love of the outdoors" and a "broad view of the Fourth Amendment."

Don't trust what the media has to say about Trump's pick? Hear it straight from the horse's mouth, then. Below are selections from Gorsuch's 2016 speech titled, “Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia":

"Judges should... strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best."

"Judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views."

"Throughout my decade on the bench, I have watched my colleagues strive day in and day out to do just as Socrates said we should — to hear courteously, answer wisely, consider soberly, and decide impartially."

"Judges should regularly issue judgments with which they disagree as a matter of policy — all because they think that’s what the law fairly demands."

"Though the critics are loud and the temptations to join them may be many, mark me down too as a believer that the traditional account of the judicial role Justice Scalia defended will endure."

Of course, Gorsuch's view of the First Amendment will be of greatest concern to journalists and the media at large as the relationship between the press and the President grows evermore turbulent. To determine what Gorsuch's appointment could mean for the one profession explicitly protected by the Constitution, it might be helpful to look at some of Justice Scalia's First Amendment decisions.

But before we do that, consider two things.

One, the First Amendment of our United States of America: "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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

And two, that Gorsuch self-identifies as an originalist, a legal doctrine popularized and once described by Scalia as the following:

"The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."

Generally, this ideology lent itself to predictably and consistency during Scalia's 30-year tenure.

In R.A.V. v. City of St. Paul, a group of teenagers burned a cross inside the fenced yard of a Black family that lived across the street. In writing the opinion, Scalia found that a St. Paul city ordinance was incongruent with the First Amendment. “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," he wrote. And in Capitol Square Review and Advisory Board v. Pinette, Scalia affirmed a court of appeals ruling that the Ku Klux Klan was permitted to display a cross in a public plaza adjacent to the Ohio statehouse.

There was also his opinion in Brown v. Entertainment Merchants Association, where he struck down a prohibition on the sale of violent video games in California. "California's legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children," reads the opinion. "Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive."

And then there were the two flag burning cases he presided over, Texas v. Johnson and United States v. Eichman in which it was decided (and affirmed) that flag burning was protected by the First Amendment.

If only because Trump wanted to nominate someone in the same vein as Scalia, it's worth noting the late justice's legal decisions contradict the President's view of flag burning:

Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!

— Donald J. Trump (@realDonaldTrump) November 29, 2016

Besides being an originalist, Scalia was a textualist, which in his own words meant, "it is the law that governs, not the intent of the lawgiver." In talking about flag burning, though, Scalia begins to stray from his stark commitment to originalism and textualism:



As this interview alludes to, there is an unbroken line of cases stemming from the 1931 Stromberg v. California and the 1969 Tinker v. Des Moines Independent Community School District in which the Supreme Court acknowledges that speech protections extend beyond written or spoken word. But the First Amendment -- when read objectively and in plain text as Scalia prided himself on -- does not lend itself to this acknowledgement.

More of Scalia's ideological clouding as a fierce defender of the First Amendment can be seen in the Hazelwood School District v. Kuhlmeier and Morse v. Frederick cases, where Scalia drew exceptions to free-speech for young people in school settings.

Most pertinent to the media today may be Scalia's reflections on a case that long preceded his tenure, New York Times v. Sullivan. This case established the "actual malice" standard, which protects the press from being sued by public officials for libel unless their coverage is false, reputation-damaging, and published with "actual malice," defined as being published "with knowledge that it was false or with reckless disregard of whether it was false or not." The court's intent was to preserve debate and discussion on government policy and conduct, as the Founding Fathers would've encouraged.

Before we continue, this seems like an appropriate time for a reminder that the intention of all of this is to look to Scalia as a reasonable indication of how Gorsuch could approach future First Amendment cases should he secure the seat on the Supreme Court.

Moving on.

At the 2011 Aspen Institute Washington Ideas Forum at the Newseum, Scalia claimed the New York Times v. Sullivan ruling meant that "you can libel public figures without liability so long as you are relying on some statement from a reliable source, whether it's true or not." He continued,

"Now the old libel law used to be (that) you're responsible, you say something false that harms somebody's reputation, we don’t care if it was told to you by nine bishops, you are liable. New York Times v. Sullivan just cast that aside because the Court thought in modern society, it'd be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, 'Yes, we're going to change our libel law.' But the living constitutionalists on the Supreme Court, the Warren Court, simply decided, 'Yes, it used to be that … George Washington could sue somebody that libeled him, but we don't think that's a good idea any more.'"

Like flag burning and campaign contributions, "actual malice" is not explicitly mentioned in the First Amendment.

Does Gorsuch feel the same way as Scalia about New York Times v. Sullivan? The Senate should ask.

Should the press fear the overturning or eroding of the protections established by New York Times v. Sullivan? Trump has, after all, declared "war" on the media, and there have been a number of instances in which the Supreme Court has overruled its prior decisions.

Sound logic would not say that Gorsuch's nomination paired with Trump's feelings towards the media  alone signal a reversal of New York Times v. Sullivan is looming on the horizon. But with the possibility that Trump could name another three justices to the Supreme Court over the next 4 years (Justice Ruth Bader Ginsburg is 83, Justice Stephen G. Breyer is 78 and Justice Kennedy is 80), it's certainly worth considering.