On Sept. 26, President Donald Trump nominated Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit to fill the Supreme Court vacancy left by the passing of Justice Ruth Bader Ginsburg. As we have for past nominees, the Reporters Committee has reviewed Judge Barrett’s record and publications to develop a better understanding of her views on issues relevant to press rights.
That record is relatively light. Judge Barrett has joined very few published opinions addressing First Amendment issues and has written fewer. Her academic work, for its part, is primarily focused on questions of judicial method rather than particular areas of the law.
In the First Amendment decisions Judge Barrett has joined in her time on the Seventh Circuit, there is no clear throughline. Twice, for instance, she has been a member of panels asked to address the speech rights of public employees. In Lett v. City of Chicago, an opinion she authored, Barrett rejected a Chicago employee’s allegation that he faced retaliation for refusing to inflate the findings of a police misconduct investigation. True or not, she concluded, his claim involved speech in connection with his official duties, and therefore did not amount to a First Amendment violation (under a nearly identical Seventh Circuit precedent that involved an employee from the same office).
In Adams v. Board of Education, by comparison, Barrett joined an opinion concluding that a school superintendent was speaking as a citizen on a matter of public concern — and entitled to the protections of the First Amendment — when she reported to the police that a member of the school board had threatened her for proposing an audit.
In one of her only other core speech cases, Judge Barrett joined an opinion by Judge Diane Sykes upholding Chicago’s “bubble-zone” ordinance, which restricts certain speech near abortion clinics. Judge Sykes concluded that the law was “nearly identical” to one upheld by the Supreme Court in Hill v. Colorado and that Hill, while “incompatible with current First Amendment doctrine,” had yet to be overruled.
Judge Barrett has also dealt with a handful of First Amendment questions outside the context of speech and the press. She joined a decision denying the Illinois Republican Party’s request for an injunction against Illinois’s coronavirus restrictions, for instance, which the party had argued infringed on its rights to gather in public. In Acevedo v. Cook County Officers Electoral Board, she wrote for the panel in rejecting a claim that the signature requirement for candidates for Cook County sheriff is too burdensome.
But to our knowledge, Judge Barrett has not had occasion to address most press rights issues — the reporter’s privilege, say, or government transparency, or the traditional privacy torts. She joined only one decision touching on the substance of defamation law, Shea v. Winnebago County Sheriff’s Department, an unpublished order that briefly discussed Illinois law’s privilege for certain statements made to law enforcement.
As for cases relevant to technology and press freedom, Judge Barrett has issued only one opinion involving the government’s surveillance powers, United States v. Kienast. In that case, she avoided answering whether the government’s use of a hacking tool to unmask users of an anonymous browser who visited a child pornography hub complied with the Fourth Amendment.
The lion’s share of the First Amendment opinions Judge Barrett has joined, though, are unpublished, per curiam orders involving prisoners’ retaliation claims. In light of the posture in which they arise — and the fact that the orders are non-precedential — these decisions are not a reliable guide to Judge Barrett’s substantive views. She has joined, for instance, unpublished decisions reaching different conclusions on whether federal officials can be sued for damages when they violate the First Amendment.
Finally, Judge Barrett’s scholarship sheds relatively little light on how she would approach First Amendment questions as a justice. She has characterized in passing Justice Antonin Scalia’s views on what originalism requires in the free speech context, but she has not elaborated on her own. And she has not, to our knowledge, weighed in on Justice Clarence Thomas’s suggestion that fidelity to original meaning requires overturning New York Times Company v. Sullivan, the Supreme Court’s seminal defamation precedent. Justice Scalia, for whom Barrett worked as a law clerk, was also a critic of the decision.
Please note that we continue to review Judge Barrett’s record and may supplement this list as needed. A full list of the cases described in this analysis is included below.
Cases described above:
Acevedo v. Cook County Officers Electoral Bd., 925 F.3d 944 (7th Cir. 2019)
Adams v. Bd. of Ed. of Harvey School Dist. 152, 968 F.3d 713 (7th Cir. 2020)
Borowski v. Bechelli, 772 F. App’x 338 (7th Cir. 2019)
Illinois Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020)
Lett v. City of Chicago, 946 F.3d 398 (7th Cir. 2020)
Price v. City of Chicago, 915 F.3d 1107 (7th Cir. 2020)
Shea v. Winnebago County Sheriff’s Dep’t, 746 F. App’x 541 (7th Cir. 2018)
Smadi v. True, 783 F. App’x 633 (7th Cir. 2019)
United States v. Kienast, 907 F.3d 522 (7th Cir. 2018)
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.
AP photo by Manuel Balce Ceneta