In 2016, when he was nominated for the U.S. Supreme Court, the Reporters Committee surveyed Judge Merrick Garland’s decisions in First Amendment and Freedom of Information Act cases from his tenure on the U.S. Court of Appeals for the D.C. Circuit.
Now that President Biden has tapped Judge Garland to serve as the next attorney general, we have updated our analysis. We do not grade nominees or make a recommendation for or against their approval by the U.S. Senate; we only try to summarize their records to offer information relevant to newsgathering and the First Amendment rights of journalists.
Judge Garland, who served as chief judge from 2013-2020, has taken strong stands on First Amendment issues in two significant dissents during his long service on the appellate court. In one case, he wrote a dissent in support of a robust reporter’s privilege. And in another case, in which he joined a dissent, he supported First Amendment protections for the publication of lawfully obtained information.
Judge Garland’s decisions in FOIA cases show a commitment to government transparency, with only a few decisions favoring government arguments for withholding records. In fact, Judge Garland identified two FOIA cases as among his most important rulings in a questionnaire submitted to the U.S. Senate Judiciary Committee in 2016. One concerned fee waivers, the other drone strike records.
Finally, in one recent court access case litigated by Reporters Committee attorneys, Judge Garland reversed a lower court’s ruling that denied public access to certain electronic surveillance records, writing in his opinion for the court that the “public’s right of access to judicial records is a fundamental element of the rule of law.”
*Opinions Written by Judge Garland
Applications for electronic surveillance authorities and certain associated documents are judicial records subject to the common law right of access, the court held, in an opinion authored by then-Chief Judge Garland. In addition, the opinion indicated that administrative burden may be a factor in deciding “how and when” a judicial record may be unsealed, but it cannot determine whether the record may be unsealed. Judge Garland wrote in his opinion that the “public’s right of access to judicial records is a fundamental element of the rule of law.” Reporters Committee attorneys, along with attorney Jeffrey Light, litigated this case on behalf of BuzzFeed News investigative reporter Jason Leopold.
MetLife, Inc. v. Financial Stability Oversight Council, 865 F.3d 661 (D.C. Cir. 2017)
Then-Chief Judge Garland’s opinion for the court held that the Dodd-Frank Wall Street Reform and Consumer Protection Act does not supersede the common law right of access to briefs and appendices submitted in conjunction with a dispute over whether a company should be designated for enhanced supervision by the Federal Reserve Board. The court affirmed that these documents were indeed judicial records, and that the statute also does not supersede the Hubbard analysis, a set of six factors the court analyzes to determine whether the strong common law presumption in favor of access to judicial records is overcome.
Dhiab v. Obama, 787 F.3d 563 (D.C. Cir. 2015)
Then-Chief Judge Garland led a three-judge panel that rejected an appeal of a district court order requiring the military to release videotapes of forced extractions of prisoners from their cells at Guantanamo Bay. Judge Garland wrote that the appellate court lacked jurisdiction to hear the appeal, and the panel did not rule on the merits. Because issues concerning redactions to the videos were still before the district court, Judge Garland concluded that there was no final order to appeal and the finding was not a collateral issue subject to an immediate appeal.
Audio recording of hearings
Then-Chief Judge Garland announced in May 2013 that the D.C. Circuit had unanimously decided to allow same-day access to audio recordings of all hearings, saying that “the Court is pleased to provide this new level of public access to our proceedings.”
League of Women Voters of United States v. Newby, 963 F.3d 130 (D.C. Cir. 2020)
The court ruled that a third party may intervene to request unsealing of materials, which the government claimed were privileged, because the materials were judicial records. The materials at issue referenced the deposition of the executive director of the U.S. Election Assistance Commission. The court remanded for application of the Hubbard factors to determine whether these records should be unsealed.
*Opinions Written by Judge Garland
Aguiar v. Drug Enf’t Admin., 865 F.3d 730 (D.C. Cir. 2017)
After he was convicted of drug offenses, plaintiff Stephen Aguiar filed a FOIA request seeking information pertaining to the Drug Enforcement Administration’s investigation of his activities. Aguiar sought software the DEA had used to map his location, as well as administrative subpoenas issued by the DEA in connection with his case. The DEA denied his request for the software on the basis that it was “not in possession or control” of the software and stated that its search for subpoenas turned up no responsive records. Aguiar brought suit in the U.S. District Court for the District of Columbia, which granted summary judgment in favor of the government. On appeal, then-Chief Judge Garland’s opinion for the court held that whether the software was an agency record under FOIA was an issue of fact that precluded summary judgment. The opinion further held that the agency’s declarations regarding the search for the administrative subpoenas were too sparse to support summary judgment.
Then-Chief Judge Garland authored a unanimous opinion for a three-judge panel of the court on the application of FOIA’s fee waiver and fee categorization provisions. The lengthy and sweeping opinion made clear that the government failed in its regulations and arguments to take into account the 2007 FOIA amendments and the changing nature of news dissemination in the digital age.
The court’s opinion generally embraced a broad view of the ability to disseminate news in the digital age: “[t]here is nothing in [FOIA] that specifies the number of outlets a requester must have, and surely a newspaper is not disqualified if it forsakes newsprint for (or never had anything but) a website.” The opinion made clear that new media entities should be able to qualify for FOIA’s fee benefit:
For a requester that serves (or plans to serve) the public through multiple outlets — here, newsletters, press releases, press contacts, a website, and planned reports — those must be considered in combination. An entity with an extensive record will ordinarily qualify with only a thin recital of its plans (or perhaps none at all). Conversely, an entity with little or no historical record of distributing its work (like the National Security Archive) may make up for that absence by concretely setting out its plans to do so.
The court also clarified that the requester’s status as a member of the news media does not turn on the nature of any individual request: a reporter “is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information.” The overall effect of Judge Garland’s opinion is that new and emerging news entities, as well as those that primarily exist online, have a much lower burden when seeking recognition as a member of the news media and fee waivers for FOIA requests.
McKinley v. Fed. Housing Finance Agency, 739 F.3d 707 (D.C. Cir. 2014)
The D.C. Circuit, in an opinion written by then-Chief Judge Garland, held that the district court did not abuse its discretion in finding that a FOIA requester was not entitled to attorneys’ fees. Assuming without deciding that the requester was eligible for attorneys’ fees, the court concluded that he was not entitled to such fees under the four-factor test for determining entitlement because: (1) there was little public benefit derived from the case, which resulted in the production of just two documents so heavily redacted that they contributed only “scant” information to the public record; the (2) commercial benefit to the requester and (3) the requester’s interest in the records weighed neither in favor nor against eligibility for fees where the requester had a professional academic interest in the records; and (4) the agency had properly invoked the deliberative process privilege to withhold the vast majority of the requested documents and was only instructed by the district court to determine whether segregation and disclosure of non-privileged factual information was possible.
The American Civil Liberties Union filed a FOIA request with the CIA for records regarding the use of drones by the CIA and armed forces to kill targeted individuals. The CIA issued a Glomar response — refusing to either confirm or deny the existence of the requested records — that was upheld by the district court, but reversed by then-Chief Judge Garland writing for a unanimous three-judge panel of the D.C. Circuit.
The court agreed with the ACLU’s arguments that numerous official acknowledgements of the United States’ drone program, including statements by CIA Director Leon Panetta, eliminated the CIA’s ability to assert a Glomar response. According to Judge Garland’s opinion:
The Glomar doctrine is in large measure a judicial construct, an interpretation of FOIA exemptions that flows from their purpose rather than their express language. In this case, the CIA asked the courts to stretch that doctrine too far — to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible. “There comes a point where … Court[s] should not be ignorant as judges of what [they] know as men” and women. Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949) (opinion of Frankfurter, J.). We are at that point with respect to the question of whether the CIA has any documents regarding the subject of drone strikes.
Judicial Watch, Inc. v. U.S. Secret Service, 726 F.3d 208 (D.C. Cir. 2013)
Judicial Watch filed a FOIA request with the Secret Service seeking logs of all visitors to the White House in a specified time period. In an opinion authored by then-Chief Judge Garland, the D.C. Circuit held that logs of visitors to the Office of the President were not “agency records” within the meaning of FOIA but were instead subject to the Presidential Records Act. The court held, however, that logs of visitors to other offices in the White House complex that are themselves subject to FOIA, such as the Office of Management and Budget, are “agency records,” and must be produced.
In deciding the case, Judge Garland wrote that the outcome of the four-factor test for determining “control” for purposes of deciding whether records were the Secret Service’s “agency records” was ambiguous, but that separation of powers concerns tipped the balance toward a finding that logs of visitors to the Office of the President were not agency records. Judge Garland emphasized that the court’s decision gave no weight to, and did not rest upon, legal conclusions in a memorandum of understanding between the Secret Service and the White House declaring that the visitor logs are presidential records under the exclusive legal custody of the White House.
Newport Aeronautical Sales v. Dep’t of Air Force, 684 F.3d 160 (D.C. Cir. 2012)
Judge Garland authored a unanimous opinion holding that technical orders concerning the care, maintenance, or repair of military equipment are exempt from FOIA under Exemption 3 and a federal statute, 10 U.S.C. § 130. The Air Force initially refused to produce technical orders requested by Newport Aeronautical Sales, a commercial data library, pursuant to Exemption 3 and § 130(a), which provides that the Department of Defense may withhold certain “technical data with military or space application” that cannot be exported without a specific license under the relevant export control statutes.
The Air Force, however, eventually produced the technical orders to Newport pursuant to Department of Defense Directive 5230.25, which provides that, notwithstanding § 130(a), it is department policy to provide technical data that discloses “critical technology” to “qualified U.S. contractors” for “legitimate business purposes,” as long as the recipient accepts restrictions on its redistribution. Newport nevertheless sought disclosure of the requested technical orders pursuant to FOIA, arguing that the requested technical orders were not “critical technology” and therefore were not governed by Directive 5230.25.
The D.C. Circuit affirmed the district court’s dismissal of Newport’s FOIA claim. The court held that Newport’s FOIA claim was not moot, even though the Air Force had provided the requested technical orders, because Newport’s challenge was to an Air Force policy, namely its practice of denying FOIA requests for data that does not depict “critical technology” and requiring Newport to seek the data under the more restrictive terms of Directive 5230.25. Nevertheless, the court affirmed the grant of summary judgment dismissing Newport’s FOIA claim because it held that § 130(a) is an Exemption 3 statute that covers the FOIA requests that Newport made to the Air Force.
American Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1 (D.C. Cir. 2011)
The American Civil Liberties Union filed a FOIA request with the Drug Enforcement Agency and Executive Office for United States Attorneys seeking disclosure of (1) the case name, docket number, and court of all criminal prosecutions in which a person was tracked using cell phone location data, where the government did not first secure a warrant based on probable cause for such data; and (2) policies and procedures followed to obtain cell phone location information for law enforcement purposes. After the ACLU filed suit against the DOJ to compel production of the requested documents, the district court ordered the DOJ to release the requested docket information only in cases that ended in convictions or guilty pleas, but not in cases where the person was acquitted or where the case was dismissed or sealed (and remained under seal).
The D.C. Circuit, in an opinion written by Judge Garland, affirmed the district court’s determination that the docket information in cases that ended in convictions or guilty pleas must be released and is not exempt under Exemption 7(C). The court held that disclosure of the docket information in cases that ended in convictions or guilty pleas implicated slight privacy interests, but that those weak privacy interests were outweighed by the significant public interest in disclosure, given the considerable public interest in the use of and justification for warrantless cell phone tracking and the considerable information disclosure would provide on the use, details, and efficacy of cell phone tracking.
In reaching this conclusion, Judge Garland relied on the “derivative use” of the docket information to locate underlying court documents in cases involving cell phone tracking. The DOJ argued that the court should not consider the derivative use of the information in determining the public benefit in disclosure, even though derivative use is used in determining the disclosure’s impact on privacy interests. The court, however, rejected this argument, with Judge Garland noting that “the two kinds of derivative use go hand in glove.”
Public Citizen, Inc. v. Rubber Manufacturers Ass’n, 533 F.3d 810 (D.C. Cir. 2008)
In an action challenging National Highway Traffic Safety Administration regulations governing the disclosure of “early warning reporting” data, the D.C. Circuit, in an opinion written by Judge Garland, held that 49 U.S.C. § 30166(m)(3)(B) of the TREAD Act does not meet the threshold criteria for a FOIA Exemption 3 statute.
The TREAD Act amended the 1966 Safety Act, which imposed reporting requirements on motor vehicle and motor vehicle equipment manufacturers. The TREAD Act directs the Secretary of Transportation to adopt a regulation expanding the scope of information that manufacturers must submit to NHTSA, including EWR data, which is information that assists the agency in identifying safety defects in motor vehicles or motor vehicle equipment. Section 30166(m)(4)(C) of the TREAD Act discusses disclosure of EWR data and provides: “None of the information collected pursuant to the final [EWR rule] shall be disclosed pursuant to section 30167(b) [of the Safety Act] unless the Secretary determines the disclosure of such information will assist in carrying out sections 39117(b) and 30118 through 30121 [of the Safety Act].” Section 30167(b) of the Safety Act requires the Secretary to disclose information obtained under the Safety Act when doing so will assist in carrying out §§ 30117(b) and 30118-21.
Public Citizen brought suit to challenge an NHTSA regulation governing the disclosure of EWR data. The Rubber Manufacturers Association intervened and filed a cross-claim challenging NHTSA’s rejection, in adopting the regulation, of RMA’s suggestion that § 30166(m)(4)(C) is a withholding statute that renders all EWR data protected from disclosure under FOIA Exemption 3 “unless the Secretary determines that the disclosure of such information will assist in carrying out” the specified provisions of the Safety Act.
The D.C. Circuit affirmed the decision of the district court, holding that § 30166(m)(4)(C) does not meet the threshold criteria for a FOIA Exemption 3 statute because it does not specifically exempt EWR data from disclosure. Writing for the court, Judge Garland explained that by its plain language, § 30166(m)(4)(C) does not mean that EWR data may not be disclosed under any circumstances without the specified secretarial determination. Rather, Judge Garland held, § 30166(m)(4)(C) provides that EWR data is not subject to disclosure pursuant to § 30167(b) without the specified secretarial determination. Accordingly, § 30166(m)(4)(C) cannot be a FOIA Exemption 3 statute because it does not specifically exempt certain matters from disclosure.
Davis v. Dep’t of Justice, 460 F.3d 92 (D.C. Cir. 2006)
In a FOIA case brought by an author challenging the FBI’s withholding of audiotape recordings from a corruption investigation under Exemption 7(C), Judge Garland, writing for a unanimous court, reversed the district court’s grant of summary judgment in favor of the government, and concluded that the FBI had not taken reasonable steps to discern whether the subjects of the tapes had died. He wrote:
[O]ne has to ask why — in the age of the Internet — the FBI restricts itself to a dead-tree source with a considerable time lag between death and publication, with limited utility for the FBI’s purpose, and with entries restricted to a small fraction of even the ‘prominent and noteworthy’? Why, in short, doesn’t the FBI just Google the two names? Surely, in the Internet age, a ‘reasonable alternative’ for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person’s death.
Consumer Federation of America v. Dep’t of Agriculture, 455 F.3d 283 (D.C. Cir. 2006)
Judge Garland authored the opinion for the court finding that the electronic calendars of five of the six top officials at the Department of Agriculture were “agency records” subject to FOIA. Referencing a previous FOIA case over access to DOJ paper calendars, the opinion notes the technological developments in records storage and use has an impact on their nature as “agency records.” Judge Garland wrote:
The USDA calendars, by contrast, were not just ‘stored’ in their authors’ offices, but were accessed and updated on a daily basis. Indeed, although not dispositive, the technological changes in the period since Assistant Attorney General Baxter kept his appointments in paper calendars are not without significance. The technologically savvy USDA officials kept their calendars ‘on the FSIS computer system,’ . . . thus necessarily subjecting them to the control of that systems administrators. At a minimum, this suggests that USDA had more ‘control’ over its officials’ calendars than the Justice Department had over Baxter’s.
Judge Garland rejected the argument that just because the calendars also contained personal entries they were not within FOIA’s reach. The court did find, however, that the calendar of a sixth less-senior official was not an agency record because it had only been distributed to his secretary.
Edmonds v. F.B.I., 417 F.3d 1319 (D.C. Cir. 2005)
Judge Garland authored the opinion for a unanimous court holding that an order by the district court for expedited processing made the plaintiff a “prevailing party” eligible for an award of costs and attorneys’ fees under the then-prevailing Buckhannon standard.
McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004)
Judge Garland concurred in part and dissented in part in a reverse-FOIA lawsuit brought to enjoin the release of information provided to the government from McDonnell Douglas. His lengthy dissent laid out his objections to part of the court’s opinion, which he characterized as “perilously close to a per se rule that line-item prices — prices the government agrees to pay out of appropriated funds for goods or services provided by private contractors — may never be revealed” under FOIA. According to Judge Garland, line item prices “are not mere offer or bid prices; they are prices that the government agreed to pay, and that it did pay, for specified services that it purchased from the company. Disclosure of such information permits the public to evaluate whether the government is receiving value for taxpayer funds, or whether the contract is instead an instance of waste, fraud, or abuse of the public trust. […] Such disclosure thus comes within the core purpose of FOIA: to inform citizens about “what their government is up to.”
Judge Garland concluded by noting that the judiciary should “think hard about whether it makes sense to regard prices actually paid by the government as trade secrets ‘of any person’ under the Trade Secrets Act, 18 U.S.C. § 1905, or as confidential commercial or financial information ‘obtained from a person’ under Exemption Four of FOIA.”
Al-Fayed v. C.I.A., 254 F.3d 300 (D.C. Cir. 2001)
Two plaintiffs, Mohamed Al-Fayed and a British magazine, brought a FOIA case against numerous federal agencies seeking access to records concerning Princess Diana’s death. Al-Fayed’s son, Dodi, had also died in the crash with the princess. In a matter of first impression, Judge Garland’s opinion for the court held that a district court must apply de novo review to denials of expedited processing under FOIA, not under the more deferential standard set out in the Administrative Procedures Act, as the government had argued. The opinion concluded that the requests did not meet the standard for expedited processing, however, noting that “[a]lthough these topics may continue to be newsworthy, none of the events at issue is the subject of a currently unfolding story.”
Students Against Genocide v. Dep’t of State, 257 F.3d 828 (D.C. Cir. 2001)
Plaintiffs sought records relating to human rights violations committed by Bosnian Serb forces in Bosnia during the summer of 1995, including photographs purportedly shown to a closed session of the United Nations Security Council. The agencies produced some records but withheld others pursuant to Exemptions 1 and 3. Judge Garland, writing for a unanimous court, affirmed a district court decision that the agency’s withholdings were proper. He rejected the plaintiffs’ argument that, because the photos had been shown to the U.N., the government had waived its ability to withhold them under FOIA. Judge Garland stated that the photos were not released to the general public, as only the Security Council delegates had seen them. Indeed, the court held that the photographs had not been “released” at all, writing, “Although Ambassador Albright displayed them to the delegates, she retained custody, and none left the U.N. chamber.”
The court went on to hold that the agencies’ searches for responsive records were not inadequate, and that other responsive documents were properly withheld under Exemptions 1 and 3.
Public Citizen Health Research Group v. Food & Drug Admin., 185 F.3d 898 (D.C. Cir. 1999)
The Food and Drug Administration requires drug companies to submit investigational new drug, or IND, applications before the company may begin clinical testing of a new drug. INDs describe the drug, the results of laboratory and pre-clinical testing, and the proposed clinical testing. In considering whether Exemption 4 applies to INDs because their disclosure would cause substantial harm to the competitive position of the drug company, the D.C. Circuit rejected an argument by Public Citizen that, under Exemption 4, the court should weigh the competitive harm done to the drug company by the public disclosure of confidential information against “the strong public interest in safeguarding the health of human trial participants.”
The court wrote that the central purpose of FOIA is to reveal the workings of the government, and that Public Citizen could not bolster its case for disclosure “by claiming an additional benefit in that, if the information is disclosed, then other drug companies will not conduct risky clinical trials of the drugs that [the company] has abandoned.” The court ultimately concluded that four of the five INDs at issue in this case were exempt from disclosure under Exemption 4.
Although Judge Garland concurred in the result, he wrote separately to disagree with the majority’s decision to reach the issue of whether a court may balance the competitive harm in disclosure with the public interest in safeguarding human health. Judge Garland wrote that the majority’s determination “means that even if disclosure were the only way to prevent the loss of human life, that would count for nothing against a showing by the company that disclosure would cause substantial harm to its competitive position.”
Judge Garland noted that the issue of balancing had not been deeply briefed or argued, that the court had in the past held that Exemption 4 requires a balancing of the interest in nondisclosure against the public interest in disclosure, and that the information Public Citizen sought may reveal much about the FDA’s performance of its statutory duties. Nevertheless, Judge Garland concurred in the result of the case because, even if the balancing of the public safety interest in disclosure were an element of Exemption 4, Public Citizen’s conclusory assertion of the public interest in safeguarding the health of human trial participants “is insufficient to prevent the entry of summary judgment in favor of the FDA.”
Grand Canyon Tr. v. Bernhardt, 947 F.3d 94 (D.C. Cir. 2020)
Per curiam opinion affirmed a lower court’s denial of requested attorney’s fees in the absence of clear error.
Shapiro v. United States Dep’t of Justice, 944 F.3d 940 (D.C. Cir. 2019)
Plaintiff requested records from the FBI pertaining to the application of a theory outlined in a 1982 article by then-Director William Webster. Called “mosaic theory,” the concept refers to how disparate information released through different FOIA requests can be combined to show a more complete picture of events. The court held that the FBI’s replies that certain files were destroyed or not responsive were not sufficiently explained and vacated and remanded the judgment.
People for the Ethical Treatment of Animals v. United States Dep’t of Agric. & Animal & Plant Health Inspection Serv., 918 F.3d 151 (D.C. Cir. 2019)
PETA brought suit against the U.S. Department of Agriculture and its Animal and Plant Health Inspection Service (“APHIS”) for removing documents from APHIS’s website, alleging that their removal violated FOIA. The department subsequently reposted the records with and without redactions. At that point, the lower court granted defendants’ motion to dismiss. The appeals court held that the lower court had to hear PETA’s claims about the redacted records, and defendants’ failure to clarify its future plans warranted remand to determine whether certain claims were, in fact, moot.
Doe, 1 v. Fed. Election Comm’n, 920 F.3d 866 (D.C. Cir. 2019)
Plaintiffs brought a suit against the Federal Election Commission to prevent it from releasing their identities in conjunction with an investigation into improper political contributions. Plaintiffs brought both a First Amendment claim and a FOIA-based claim. Pointing to Supreme Court precedent, the panel held that the Federal Election Campaign Act’s naming requirements did not violate the First Amendment. The panel also held that no provision of FOIA prevented the Commission from revealing the plaintiffs’ identities.
Judicial Watch, Inc. v. United States Dep’t of State, 748 F. App’x 352 (D.C. Cir. 2019)
The appeals court affirmed a lower court ruling that the State Department’s search in response to a FOIA request for records was adequate. The search responded to a request for records relevant to the determination by the Office of Legal Counsel that certain emails of former Secretary of State Hillary Clinton would not be considered official State Department records. (Note: unpublished opinion).
Waterman v. Internal Revenue Serv., 755 F. App’x 26 (D.C. Cir. 2019)
The court vacated and remanded the case for findings on whether certain portions of documents withheld pursuant to a FOIA exemption were segregable from the rest of the document. (Note: unpublished opinion)
In re: Grand Jury Subpoena, Judith Miller, 405 F.3d 17 (D.C. Cir. 2005)
Though Judge Garland was a judge on the D.C. Circuit when the contempt case of New York Times reporter Judith Miller was on appeal, the docket and the decision denying en banc review note that he “did not participate” in the review decision, without further elaboration.
In a Privacy Act suit brought by Wen Ho Lee, an atomic scientist who had been accused by the FBI of giving nuclear secrets to China, journalists for several news organizations had been held in contempt for refusing to disclose the names of any individuals within the FBI who may have provided them with information about the investigation. The district court judge found that the identities of possible sources went to the heart of the matter in question, and alternative sources of the information had been exhausted.
The contempt citations were upheld by a three-judge appellate panel. When the entire court subsequently declined to rehear the appeal, Judge Garland separately dissented from the denial of rehearing en banc. He also joined the dissent of his colleague, Judge David Tatel, who wrote that the most important element of the balancing test in determining whether to apply the reporter’s privilege in a civil suit was “weighing the public interest in protecting the reporter’s sources against the private interest in compelling disclosure,” which was established by D.C. Circuit precedent in 1981.
Judge Garland’s separate dissent emphasized how the simpler test used by the appellate panel — examining whether the identity of a source goes “to the heart of the matter” and whether alternative sources of the information have been exhausted — would render the privilege meaningless in the case of any news story based on information from a whistleblower:
The significance of the court’s decision in this case should not be underestimated. In many cases involving leaks of government information concerning identifiable individuals, those individuals will have viable claims under the Privacy Act. Moreover, the Act is not limited to private individuals. It is equally available to public officials — and to former public officials — whether they have been accused of corruption or merely of incompetence. It would, for example, be available to former officials seeking to learn who leaked the information that forced them to resign in their administration’s own Watergate.
Barring an unexpected confession by the leaker, in most such cases the subject of the leak will be able to satisfy the centrality and exhaustion requirements cited in the court’s opinion. Thus, if the reporter’s privilege is limited to those requirements, it is effectively no privilege at all. Plaintiffs wielding Privacy Act suits will routinely succeed in putting reporters who receive whistleblower leaks to the choice of testifying or going to jail. And bridled by nothing other than plaintiffs’ private interests, the more such strategies succeed, the more they will be employed. Indeed, where former officials have themselves been indicted, they may find that issuing third-party subpoenas to reporters in Privacy Act suits usefully supplements criminal discovery.
All of this is inconsistent with the commitment we made in Zerilli, where we promised that, “when striking the balance between the civil litigant’s interest in compelled disclosure and the public interest in protecting a newspaper’s confidential sources, we will be mindful of the preferred position of the First Amendment and the importance of a vigorous press.” Zerilli v. Smith, 656 F.2d 705, 712 (D.C.Cir.1981) . …
The only way to render the reporter’s privilege effective in the face of Privacy Act claims is to include the requirement … that the court “weigh[ ] the public interest in protecting the reporter’s sources against the private interest in compelling disclosure,” Zerilli, 656 F.2d at 712.
Judge Garland joined a dissent written by Judge David Sentelle, finding that someone who lawfully obtained a recording could not be punished for publishing it, even if they should have known that the recording was unlawfully made.
The case involved a 1996 recording of a cell phone conversation between members of the Republican leadership in the House of Representatives in which they discussed how to handle alleged ethical violations of House Speaker Newt Gingrich, including information about “whether Gingrich had violated his settlement agreement with the Ethics Committee.” The tape was given to Rep. James McDermott, who played it for New York Times reporter Adam Clymer and allowed him to record it. After protracted litigation and appeals over whether McDermott’s actions violated the federal wiretap act, the case ended up before the entire D.C. Circuit. The majority of a closely split court held that McDermott did not have a First Amendment defense, primarily because he violated congressional ethics standards in playing it for a reporter.
In the dissent joined by Judge Garland, Judge Sentelle wrote that “the issue is: ‘Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?’” Judge Sentelle wrote that he would answer that question “in the negative,” and that the U.S. Supreme Court decision in Bartnicki v. Vopper, 532 U.S. 514 (2001), which was decided after the first appeal in this case, made clear that such action should not be punished.
*Opinions Written by Judge Garland
Messina v. Krakower, 439 F.3d 755 (D.C. Cir. 2006)
In a libel suit between business partners and their attorneys over communications leading to a lawsuit over their business, Judge Garland held that the judicial proceedings privilege was broad because it “is intended to facilitate candid discussion, not to obscure it,” and thus allegedly defamatory comments in the communications were privileged.
Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006)
An “infomercial” producer claimed a Federal Trade Commission press release was false and misleading and violated the First Amendment because the falsity was in retaliation for his criticism of the commission. Judge Garland wrote that the plaintiff had failed to state a claim because the release was not false, after finding that determinations of truth or falsity can be determined as matter of law if “no reasonable juror” could find the statements false.
Washburn v. Lavoie, 437 F.3d 84 (D.C. Cir. 2006)
In a libel suit between neighbors over noise complaints, Judge Garland upheld the dismissal of the claim under the self-defense privilege, because the defendants were opposing the plaintiff’s attempts to have them evicted or disciplined by their university. The district court had granted summary judgment on other grounds, having rejected the self-defense argument.
Novecon Ltd. v. Bulgarian-American Enterprise Fund, 190 F.3d 556 (D.C. Cir. 1999)
In a business defamation suit, Judge Garland declined to find that the evidence of common-law malice was sufficient to overcome a self-defense privilege asserted by the libel defendant: “While Novecon contends that the reader would interpret BAEF’s letter as literally charging it with a crime (extortion), we think that unlikely. The context of the statement … made clear to the reader that the reference was to Novecon’s civil lawsuit and not to some nefarious scheme. … [H]ere the word ‘extort’ was used as ’a vigorous epithet’ by ‘those who considered’ Novecon’s litigating position ‘extremely unreasonable.’”
The panel rejected claims both that the statements themselves and “extrinsic evidence” established such malice. Having found that a common-law privilege sustained the dismissal, the panel declined to reach the First Amendment argument on which the defendants had also prevailed below, that the plaintiffs were limited-purpose public figures.
Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) (en banc)
Three individuals who were personal services contractors with various federal government agencies sued over a federal law barring government contractors from making donations to political campaigns. Judge Garland, writing for a unanimous en banc court, upheld the statute because of the important state interest in avoiding corruption and because it is “closely drawn to avoid unnecessary abridgment of associational freedoms.”
National Assoc. Of Manufacturers v. Taylor, 582 F.3d 1 (D.C. Cir. 2009)
Judge Garland upheld the constitutionality of the Honest Leadership and Open Government Act, which requires registered lobbyists to disclose the identity of organizations that made monetary contributions and actively participated in planning, supervision, or control of lobbying activities. Judge Garland, writing for a three-judge panel, concluded that the act was not improper on its face or as applied to the plaintiff, and was not unconstitutionally vague.
“We agree with NAM that these are substantial First Amendment interests and that requiring disclosure can burden them. … But we also note that the [Supreme] Court, recognizing the lesser burdens that disclosure generally imposes on First Amendment interests, has upheld numerous statutes requiring disclosures by those endeavoring to influence the political system,” Judge Garland wrote.
Initiative and Referendum Institute v. U.S. Postal Service, 417 F.3d 1299 (D.C. Cir. 2005)
Judge Garland ruled that a Postal Service regulation banning soliciting signatures on petitions, polls, or surveys on Postal Service property was not narrowly tailored to advance any content-neutral goal, did not leave open ample alternative channels of communication, and was not reasonable because of its broad scope.
Novato Healthcare Center v. NLRB, 916 F.3d 1095 (D.C. Cir. 2019)
Then-Chief Judge Garland’s opinion for the court held that the National Labor Relations Act requires that First Amendment arguments must first be brought to the National Labor Relations Board before being heard in court. Chief Judge Garland held that no exception exists to the statute’s requirements by virtue of the claim being brought under the First Amendment.
Loumiet v. United States, 948 F.3d 376 (D.C. Cir. 2020)
The plaintiff initiated action against the U.S. and four officials at the Office of Comptroller of the Currency for retaliatory action against him under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. In an opinion by Judge Katsas, joined by Judge Garland, The court held that the First Amendment retaliation claim presented a new context under Bivens, and special factors, namely the availability of a comprehensive statutory remedial scheme, counseled against extension of a Bivens remedy in this case.
United States v. Williamson, 903 F.3d 124 (D.C. Cir. 2018)
In an opinion by Judge Srinivasan, joined by then-Chief Judge Garland, the court dismissed a criminal defendant’s claims that the sentencing court improperly considered First Amendment activity in setting his sentence. The relevant communications were phone calls and letters to the government asking for relief from alleged government harassment. In a brief discussion, the court pointed to Supreme Court precedent that a court may consider a defendant’s First Amendment-protected beliefs in sentencing when those beliefs are relevant to determining an appropriate sentence. The court held that, in this case, the defendant’s conduct amounted to disturbing conduct relevant to determining whether he posed a danger to the public (and a particular government agent), and, thus, to his sentence.
Scahill v. District of Columbia, 909 F.3d 1177 (D.C. Cir. 2018)
A business owner brought suit arguing that a requirement to notify the city government of violations on a liquor license violated his rights against compelled speech and right of commercial association. In an opinion by Judge Rogers, joined by then-Chief Judge Garland, the court found that the plaintiff had failed to state a claim for a compelled speech violation because D.C. Circuit precedent held that government notification requirements did not constitute compelled speech. The court also found that the plaintiff’s commercial association claim was foreclosed by Supreme Court precedent finding no general right to social association. Finally, the court found the plaintiff had failed to allege the causation required to state a First Amendment retaliation claim against city officers.
Liff v. Office of the Inspector General for U.S. Dep’t of Labor, 881 F.3d 912 (D.C. Cir. 2018)
A contractor for the Department of Labor brought a lawsuit for damages against Labor Department staff, arguing that they had violated his due process rights by making statements that allegedly harmed his professional reputation. In an opinion by Judge Wilkins, joined by then-Chief Judge Garland, the court ruled that no damages remedy was available in this context, as Congress had provided ample alternative statutory remedies.
AP Photo by Susan Walsh