Special report on Supreme Court nominee Neil Gorsuch

On January 31, President Donald Trump nominated Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to fill the U.S. Supreme Court vacancy left by the death of Justice Antonin Scalia in February of 2016.  Gorsuch does not have an extensive history of deciding cases involving free speech, free press, and freedom of information issues, but the opinions he authored or joined during his more than 10 years on the Tenth Circuit that do touch upon those issues reflect the application of well-established First Amendment principles in a consistent way.

His decisions in libel and invasion of privacy cases show a willingness to uphold protections for speech rights against tort claims even in controversial cases, such as when a television station publicized the names of undercover police officers in a story involving accusations of sexual assault, or when another television station showed a photo of the perpetrator in a sexual assault video.  Gorsuch also wrote an opinion applying the “substantial truth” doctrine, which holds that libel claims cannot rest on minor inaccuracies, in a case brought by a federal prisoner identified as a member of the Aryan Brotherhood.

In an area of increasing concern to journalists, Gorsuch joined a panel opinion holding that a broad warrant to search the computers and papers of a journalist accused of criminal libel for any evidence of any crime violated the Fourth Amendment. He also joined in an opinion upholding the constitutionality of a state statute requiring sex offenders to disclose all of their social media and web site accounts to police, acknowledging an interest in anonymous speech but finding that the statute was not a content-based restriction on speech.

His work in Freedom of Information Act, court access, and copyright cases is not substantial, and a campaign finance case stressed the First Amendment interests at stake but was decided as an equal protection case. More detailed summaries of these cases follow.

Libel and Privacy

In a 2011 decision penned by Gorsuch, a Tenth Circuit panel upheld the dismissal of a defamation suit, Bustos v. A&E Television Networks, arising out of a broadcast that identified an inmate at a Colorado prison facility as a member of the Aryan Brotherhood prison gang.

Gorsuch concluded that while the plaintiff was not “formally a member of the Brotherhood, he surely did affiliate with the organization,” not only by communicating with other members but also by conspiring to transport drugs on their behalf.  Accordingly, the Tenth Circuit found that the distinction between being a “member,” as A&E had said, and being affiliated with the organization, while it could “cause some modicum of additional injury to [the plaintiff’s] reputation,” was “not one a juror could find likely to be significant to a reasonable person.”  The opinion further notes that the inmate was unable to show that his reputation would be improved if A&E had described his true relationship with the Brotherhood.

In 2007 Gorsuch joined an opinion written by Judge David M. Ebel in Alvarado v. KOB-TV, LLC, holding that a local television station, KOB-TV, did not invade the privacy of undercover officers by broadcasting their names and undercover status in association with their alleged involvement in a sexual assault.

Applying New Mexico tort law, the Tenth Circuit found that the plaintiffs failed to state a claim for intrusion or publication of private facts.  As to the former, the court concluded that while the network showed footage of both officers answering the doors to their homes and informing KOB-TV reporters that they did not want to comment, the reporters did not “badger their way into the officers’ homes” or “repeatedly approach[]” the undercover officers at their homes.  The court also noted that the plaintiffs did not claim that KOB-TV had obtained video by invading their private space.

Judge Ebel’s opinion further stated that the subject of the television station’s broadcast—police misconduct—was “a matter of public interest in First Amendment analyses” because there is “strong public interest in ensuring open discussion and criticism of [police officer] qualifications and job performance.”   The court found that criminalizing the publication of officers’ identities would conflict with the First Amendment and New Mexico law, and because the officers’ suspected involvement in a sexual assault was a matter of public interest, their identities—which were “substantially relevant to a newsworthy topic”—need not be removed from the story:  “Courts have not defined the tort of public disclosure of private facts in a way that would obligate a publisher to parse out concededly public interest information, e.g., sexual assault allegations against two members of the police department, from allegedly private facts, e.g., the officers’ identities and undercover status.”

In another decision joined by Gorsuch, Anderson v. Suiters, the Tenth Circuit upheld a trial court’s dismissal of several privacy claims against a reporter with KOCO-TV and the Hearst Corporation, the station’s owner. The court held that the journalist did not become a “state actor”—a holding that precluded the journalist from being sued for civil rights violations—by broadcasting an image from a video of a sexual assault that had been provided to KOCO-TV by a police officer.  The image was of the victim’s husband, whom she accused of raping her.

The trial court’s dismissal of the plaintiff’s privacy claims was affirmed on the basis of well-established precedent.  On the intrusion upon seclusion claim, the court found that the plaintiff did not provide any explanation as to how the broadcast was an intrusion, merely stating that it was.  The court also concluded that the broadcast was not a publication of private facts because the incident was of legitimate public concern.

A matter can be of legitimate public concern even though it concerns private individuals . . . who have not sought publicity or consented to it, but through their own conduct or otherwise have become a legitimate subject of public interest,” the court held. 

The court also held that “every private fact disclosed in an otherwise truthful newsworthy publication must have some substantial relevance to a matter of legitimate public interest.”  Because the videotape at issue was “substantially relevant to a matter of legitimate public interest—namely, the prosecution of the [plaintiff’s] husband, a local attorney, for rape, as well as for other sexual assault charges involving multiple victims”—the court found that the media defendants could not be held liable for airing the tape, albeit sensitive, that was relevant to the story.  The decision concludes by noting that “editorial judgment is a matter that courts have generally left to the press.”  

Gorsuch authored the decision in General Steel Domestic Sales, LLC v. Chumley, a false advertising case under the Lanham Act. The decision affirmed the district court’s determination that a competitor’s false statements were material enough to support a false advertising claim. “Most everyone expects a little audacity—maybe even a little mendacity—in their advertising,” Gorsuch wrote. “Sometimes it can even prove amusing. Like the local greasy spoon’s boast that it pours the ‘world’s best cup of coffee.” But when it crosses the line into “underhanded deception with material commercial consequences,” it is illegal.

Judge Gorsuch did not pen, but joined the panel opinion in Cory v. Allstate Ins., a 2009 libel decision in which the Tenth Circuit upheld a district court order finding the defendant, an insurance company, not liable for defamation.  Id. at 1244.  The panel concluded that “minor inaccuracies will not preclude the defense so long as the substance, the gist, the sting of the defamatory charge can be justified.”

Searches of work product

In 2011, Gorsuch joined a panel opinion in Mink v. Knox that addressed First and Fourth Amendment issues. Thomas Mink had started The Howling Pig, a parody publication, with friends and included a photograph of a professor modified to look like a make-up wearing member of the rock band Kiss. The professor filed a criminal libel complaint, and police searched Mink’s home, taking his computer and other written materials. The search warrant was for anything related to any “criminal offense.” Based on the Fourth Amendment’s "particularity requirement," the Tenth Circuit in Mink ruled that a warrant requesting “all computer and non-computer equipment and written materials in [a defendant’s] house” was too broad. The court also found that a criminal defamation prosecution against Mink could not be upheld under the First Amendment: “Even false statements of fact are protected from a defamation claim if any reasonable person would recognize the statements as parody,” the court found.

In 2013, Gorsuch wrote the opinion for the panel in United States v. Christie, a non-media case, that seemed to limit Minx. In Christie, a murder case, the government obtained a broad warrant to search the defendant’s computer for evidence related to “the murder, abuse, and neglect” of the defendant’s child.  Id.  Although the court acknowledged that the scope of the warrant was broad, it found that it satisfied the particularity requirement. Acknowledging that the Tenth Circuit’s application of the particularity requirement to computer searches “is still relatively new,” Gorsuch wrote that the Fourth Amendment has never been understood to demand “technical precision” or “elaborate detail.”

Social media restrictions

In 2010 Gorsuch joined a panel opinion in Doe v. Shurtleff upholding the constitutionality of a Utah “social media” statute that required convicted sex offenders to register all online usernames with the state, and limited how state officials could use that information.  The court found that the Utah statute was content-neutral and therefore subject to intermediate scrutiny, noting that the purpose of the statute was to aid the police in solving crimes rather than to target specific types of messages. To survive intermediate scrutiny, a law must be narrowly tailored to promote a substantial government interest that would be achieved less effectively absent the regulation.

The Tenth Circuit found that the statute could be read to only permit sharing of information for limited law-enforcement purposes between law-enforcement agencies. The law did not allow the state to publicly disclose usernames. In addition, the state could not access the sex offender’s identity to monitor all of his or her online communications; rather, the state could only do this sort of monitoring in the course of an investigation for a new crime. For these reasons, the court affirmed the district court’s ruling that the statute did not violate the First Amendment.

This case bears some similarities to a case recently heard by the Supreme Court, Packingham v. North Carolina, which raises a First Amendment challenge to a similar North Carolina statute. That statute prohibits registered sex offenders from accessing certain websites.

Court access

While on the Tenth Circuit, Gorsuch did not participate in any cases that involved news media claims for access to closed court proceedings or sealed documents. But in ClearOne Communications, Inc. v. Bowers, a case involving an employer-employee dispute over trade secrets, he authored a panel opinion upholding the sealing of the trade secret material at issue, but noting that “we generally regard court records sealed from public scrutiny with a healthy skepticism.”

Freedom of Information

Gorsuch did not participate in any significant cases brought under the Freedom of Information Act during his tenure on the Tenth Circuit. (A handful of cases mentioned FOIA claims that had been summarily dismissed as irrelevant.)

However, after law school, when he served as a clerk to Judge David B. Sentelle of the D.C. Circuit in 1991-92, he might have participated in a Sentelle FOIA decision from that year. In Federal Labor Relations Auth. v. Dep’t of Justice, the court held that employment records and evaluations were protected from disclosure under FOIA.

Related speech issues

In a campaign finance case, Gorsuch wrote a concurring opinion that emphasized First Amendment rights.  In Riddle v. Hickenlooper, Gorsuch agreed with the panel majority that the Colorado campaign finance rules at issue violated equal protection guarantees by allowing major-party candidates to accept twice as much in contributions per individual than independent and minor-party candidates, because they faced both primary and general elections. However, Gorsuch wrote separately to express “some uncertainty” about applying strict scrutiny because the case was decided under the Fourteenth Amendment and a protected class was not at issue. Gorsuch’s concurrence also highlights the First Amendment: “No one before us disputes that the act of contributing to political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate — both expressly protected First Amendment activities.”

In a copyright case, Meshwerks, Inc. v. Toyota Motor Sales USA, Inc., Gorsuch applied well-established standards about the “idea/expression dichotomy” in copyright law, which holds that ideas or facts are not copyrightable but the expression of those ideas can be. Finding that digitally created replicas of Toyota cars were not “sufficiently original” to warrant copyright protection, Gorsuch acknowledged that “just as photographs can be, but are not per se, copyrightable, the same holds true for digital models. There's little question that digital models can be devised of Toyota cars with copyrightable features, whether by virtue of unique shading, lighting, angle, background scene, or other choices.”

Bring in the Marines!

As an undergraduate student at Columbia University in the mid-1980s, Gorsuch took a strong stand in defense of the free speech rights of military recruiters. 

When he was a candidate for the student body Senate, each of the candidates was asked by the Columbia Daily Spectator in the March 19, 1986, edition of the paper to present their views on nine campus issues. One of the issues was whether or not the Marines, who at the time had an exclusionary policy toward homosexuals, should be allowed to recruit on campus. He was the only candidate who raised a free speech concern, and argued that the Marines should be permitted to recruit on campus:

“The question here is not whether ‘the Marines should be allowed to recruit on campus’ but whether a University and its community, so devoted to the freedom of individuals to pursue their own chosen lifestyles and to speak freely, has the right or obligation to determine who may speak on campus or what may be said. To fulfill an immediate end, we are likely to forget the underlying principle that every human being, according to our nation's proclamations, and reinforced by our University's standards, has an inalienable right to express himself or herself—whether we agree or not. Free speech works; it works better than any form of censorship or suppression; and in exercising vigorously, the truth is bound to emerge.”

The next year, he promoted the same position on the op-ed pages of the Feb. 13, 1987, edition of the newspaper, and criticized the editorial board for penning an editorial arguing that marines should not be allowed to recruit on campus while at the same time allowing for paid military recruiting ads in it pages.

Citations:

Alvarado v. KOB-TV, LLC, 493 F.3d 1210 (10th Cir. 2007)
Anderson v. Suiters, 499 F.3d 1228 (10th Cir. 2007)
Benavides v. Drug Enforcement Admin., 968 F.2d 1243 (D.C. Cir. 1992)
Bustos v. A&E Televisions Networks, 646 F.3d 762 (10th Cir. 2011)
ClearOne Communications, Inc. v. Bowers, 509 Fed. Appx. 798 (10th Cir. 2013)
Cory v. Allstate Ins., 583 F.3d 1240 (10th Cir. (2009)
Critical Mass Energy Project v. Nuclear Regulatory Com’n, 975 F.2d 871 (D.C. Cir. 1992)
Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010)
Fed. Labor Relations Auth. v. Dep’t of Justice, 962 F.2d 1055 (D.C. Cir. 1992)
McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)
Meshwerks, Inc. v. Toyota Motor Sales USA, Inc., 528 F.3d 1258 (10th Cir. 2008)
Mink v. Knox, 613 F.3d 995 (10th Cir. 2010)
Riddle v. Hickenlooper, 742 F.3d 922 (10th Cir. 2014)
United States v. Christie, 717 F.3d 1156 (2013)