Judge Neil M. Gorsuch was confirmed by the Senate on Friday to become the 113th justice of the Supreme Court, ending a yearlong standoff over Antonin Scalia’s seat.
The new Supreme Court Justice is unlikely to change libel laws or otherwise rock the boat for Hollywood, no matter how much President Trump continues to blast angry tweets at media and celebrities.
As a judge of the Denver-based Tenth Circuit Court of Appeals, Gorsuch consistently dismissed libel and privacy lawsuits brought against television networks, television stations, and other media defendants. It’s likely he’ll continue to do so as the newest member of the Supreme Court; not because he’s taking sides or breaking new legal ground — he is simply doing what the First Amendment requires and following well-established legal rulings.
“I think he is mainstream on speech and press, though very conservative on the religion issues,” Ewrin Chemerinsky, Dean of UC Irvine Law School and a First Amendment expert, told TheWrap.
UCLA Law School Professor Eugene Volokh, another First Amendment expert, agreed, telling TheWrap that he thinks Gorsuch is “pretty mainstream” on the First Amendment’s protections for the press.
During his confirmation hearings before the Senate Judiciary Committee, Gorsuch’s testimony seemed designed to reassured senators that he was not going to “open up libel laws,” even though that’s what Trump pledged on the campaign trail last year and tweeted again on March 29.
Gorsuch reminded the committee that the landmark Supreme Court decision that created the actual malice rule and protects the press from libel bullies, New York Times v. Sullivan, has been the “law of the land for gosh, 50, 60 years.“
He also volunteered that he dismissed a prisoner’s defamation lawsuit against A&E Networks in a 2011 opinion he wrote as a judge for the Tenth Circuit. Gorsuch wrote that the cable network prisoner’s libel lawsuit should be dismissed, even though A&E mistakenly implied that the prisoner was a member of the Aryan Brotherhood, endangering the prisoner’s life. His decision schooled the prisoner that the First Amendment protects news reports that are “substantially” true.
Gorsuch also sided with his colleagues in ruling in favor of TV journalists in a 2007 Tenth Circuit case called Alvarado v. KOB-TV.
The Tenth Circuit decision, which Gorsuch joined, ruled that a local TV station may have caused two undercover police officers emotional distress and violated their privacy by revealing their identities but that was not enough for them to bring a privacy lawsuit.
But Gorsuch ruled that the First Amendment stripped the officers of their right to bring a privacy lawsuit against the TV station because the two officers were also suspects in a sexual assault case, and that made the officers and their names a matter of public concern protected by the First Amendment.
“Because allegations of police misconduct are in the public interest, and because there is no exception in the law for undercover officers,” the officers’ lawsuit must be dismissed, the court ruled.
Gorsuch also will bring a welcome bit of tech smarts to a court that lacks understanding of some of the most basic electronic functions and social media platforms, like, say, those newfangled things called email and Facebook.
In a talk in 2013, Justice Elena Kagan said that while she uses email and reads online blogs, she suggested that isn’t true of all her older colleagues, and Facebook and Twitter are “a challenge for us.”
In contrast, Judge Gorsuch seems to relish digging into cases that involve digital databases, peer-to-peer networks like Kazaa, and the First Amendment right to use the Internet.
“On a Supreme Court that is not particularly technologically savvy, Gorsuch’s technical sophistication could be of great value,” one writer said.
In United States v. Davis, for example, Judge Gorsuch rejected a prison sentence that barred a prisoner during supervised release from “Internet use or use of Internet-capable devices,” saying the such a broad ban on Internet use “will typically constitute greater deprivation of liberty than reasonably necessary.”
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