Supreme Court pick is good news for mediaBy MARK GRABOWSKI
February 03, 2017
Donald Trump nominated Neil Gorsuch Tuesday to succeed Antonin Scalia, whose seat on the nation’s highest bench has remained vacant since his death in February 2016.
Gorsuch, a 49-year-old judge on the U.S. Court of Appeals for the 10th Circuit, is a former journalist with a strong judicial record of supporting freedom of the press.
Before attending Harvard Law and embarking on a legal career, Gorsuch studied at Columbia University, where he wrote columns for the student newspaper, the Columbia Daily Spectator. He also co-founded an alternative student newspaper, The Fed, aimed at rebutting what he considered the dominant “politically correct” philosophy on campus.
As a federal appellate judge, Gorsuch has ruled in favor of the press in several important cases. His judicial record is a stark contrast to Trump’s views on media law, particularly libel. The Republican president has been so openly hostile towards the press that the Committee to Protect Journalists deemed him an “unprecedented threat to the rights of journalists.”
During his presidential campaign, Trump vowed to punish newspapers for writing negative stories about him. “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” he said.
But, it might be a bit more difficult to do that with Gorsuch on the Supreme Court.
The High Court is often the final arbiter on First Amendment controversies, and Gorsuch’s record indicates he’s a pro-journalism jurist.
For example, in a 2007 case, Alvarado v. KOB-TV, Gorsuch and the 10th Circuit Court ruled that a controversial story’s newsworthiness outweighed a subject’s right to privacy. Two Albuquerque policemen had sued a local television station for invasion of privacy and intentional infliction of emotional distress for reporting that they were being investigated for sexual assault.
Although the two officers were never charged and an investigation eventually cleared them of wrongdoing, the court ruled that the public has a legitimate interest in stories about allegations of police misconduct.
Gorsuch has also defended the rights of student journalists. In a much-celebrated 2010 decision, Gorsuch joined the court in ruling that a college journalist had his constitutional rights violated when police searched his home and confiscated his computer after a professor complained of being libeled by the student’s satirical newsletter.
In his concurrence in Mink v. Knox, Gorsuch wrote that, “the First Amendment precludes defamation actions aimed at parody, even parody causing injury to individuals who are not public figures or involved in a public controversy.”
Ultimately, law enforcement officials paid the student scribe $425,000 to settle the case. The American Civil Liberties Union, Student Press Law Center and Foundation for Individual Rights in Education all lauded the court’s decision.
Gorsuch’s journalism roots really shined through in a 2011 case, Bustos v. A&E Television Networks. He and his colleagues ruled the History Channel did not defame a man when it aired a documentary that identified him as being part of a white supremacist group. Although the plaintiff conspired with the Aryan Brotherhood, he was not a member and said the misidentification caused him to receive threats from both the gang and its rivals.
But Gorsuch dismissed the libel lawsuit, explaining, “While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.”
Gorsuch’s opinion is notable not just because of how he ruled, but also how he wrote it. While court opinions tend to be bland, Denver Post federal courts reporter John Ingold noted that, “The opinion is filled with witticisms, clever hypotheticals, intriguing details about prison life and generally enjoyable recountings of events.”
The writing skills and experience Gorsuch acquired while practicing journalism have no doubt served him well as a judge. Perhaps someday soon he’ll use them to write a landmark decision related to press freedom and the First Amendment. With Trump in the White House, journalists could certainly use an ally on the Supreme Court.
Mark Grabowski ©2017
Mark Grabowski is a law professor and former political journalist who regularly writes on current events.
Stories In The News
Contact the Editor