During the 2016 presidential campaign, Donald Trump famously threatened to “open up the libel laws,” prompting me to write “Is the First Amendment Safe from Donald Trump?”
In that piece, I worried that Trump might nominate Supreme Court justices who were willing to set aside New York Times v. Sullivan — something that Obama appointee Elena Kagan has at least flirted with.
When Trump nominated Neil Gorsuch, he did not pick an anti-speech demagogue. But when Brett Kavanaugh’s name came up, my reaction was initially negative. After doing a deeper dive into his First Amendment bona fides, however, I think that Trump has selected what should prove to be a pretty good, if not quite good, justice on First Amendment issues. I am tentatively willing to give him a B+ going into his confirmation hearings.
To me, the most significant free speech case Kavanaugh decided is Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (2015). This was a defamation case that dealt with the application of D.C.’s Anti-Strategic Lawsuit Against Public Participation (SLAPP) statute. I am a proponent of these statutes, as they help get rid of meritless defamation suits early and remove the incentive for filing them in the first place by guaranteeing attorneys’ fees to prevailing defendants. I wrote the Nevada version.
Kavanaugh felt that, as a matter of civil procedure, D.C.’s Anti-SLAPP statute did not apply in federal court because it conflicted with the Federal Rules. I disagree with this decision because Anti-SLAPP statutes establish important substantive rights that federal courts should respect.
But anyone who expects a justice to be all things to all people is a fool. And the rest of his decision is very supportive of free speech.
Kavanaugh recognizes in it that people engaged in journalistic and other news-gathering activities need to be given the latitude to ask questions, even if the questions (if rephrased as declaratory statements) could be defamatory. This is an important recognition that the marketplace of ideas thrives on people asking, and eventually answering, uncomfortable questions.
Despite Kavanaugh’s hostility towards Anti-SLAPP statutes in federal courts, he recognized the importance of dismissing unmeritorious defamation suits early on. In Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106 (D.C. Cir. 2017), he wrote that it was important to get rid of these suits early, as otherwise, the prospect of litigation would impose a significant chilling effect on free speech.
He also recognized that reporters should not be required to issue retractions to be protected under the First Amendment, at least when writing about public figures. This is because public figure defamation plaintiffs, under the New York Times Co. v. Sullivan “actual malice” standard, must prove that a defendant wrote a statement with knowledge of its falsity or reckless disregard for its truth; the decision of whether to issue a subsequent retraction is irrelevant to their state of mind when they originally wrote the statement.
Commercial speech does not have a clear definition, but the Supreme Court has generally defined it as speech that does nothing more than propose a commercial transaction. It encompasses matters like purely descriptive information about a product, including pricing and health information. Commercial speech still receives First Amendment protections, though to a lesser extent that purely expressive speech.
In my experience, some judges don’t appreciate the First Amendment protections afforded to commercial speech. Kavanaugh does not appear to be such a judge.
In Am. Meat Inst. v. United States Dep’t of Agric., 760 F.3d 18 (2014), he recognized that the government must provide a fairly substantial showing of a significant government interest to impose a mandatory labeling requirement. Consumer curiosity, by itself, is not a sufficient interest, and even where such an interest exists, the compelled disclosure must be purely factual, uncontroversial, not unduly burdensome, and reasonably related to the Government’s interest.
Despite recognizing that the government needs a good reason to compel commercial speech, however, Kavanaugh wrote an odd concurrence in American Meat Institute v. United States Department of Agriculture, 760 F.3d 18 (D.C. Cir. 2014). This case involved a First Amendment challenge to government requirement that, among others, meat packing companies list the country of origin of their products, arguing that it constituted impermissible compelled speech.
Kavanaugh went beyond the rationale of the majority of the court and decided that economic protectionism was a legitimate government interested that could justify compelled commercial speech, which does not find much support in First Amendment jurisprudence.
Right of Access
Courts across the nation have recognized that the general public has a right to access judicial records in litigation. This is a crucial right that ensures public confidence that federal and state courts are functioning in a fair and impartial manner. Fortunately, Kavanaugh appears to appreciate the importance of this right.
In United States v. Brice, 649 F.3d 793, 797 (2011), Kavanaugh recognized the public’s right to access judicial documents, especially in criminal cases. The defendant, in this case, argued that documents in the case could be disclosed only to his counsel, and not to the general public.
Kavanaugh noted, however, that there is no precedent (at least in criminal cases) for disclosing such documents only to a party’s counsel. If anything, this ruling is excessively protective of the public’s right of access to judicial records; I am fine with erring on the side of too much free speech, though.
Kavanaugh is not a perfect judge on free speech, but no judge is. He does, however, have a healthy respect for the reality that defamation litigation can chill free speech, and thus that obviously weak defamation cases should be dismissed early.He also recognizes that commercial speech enjoys significant protection under the First Amendment and that the public has a right to judicial records.
He may not be my dream Supreme Court nominee, but at least regarding First Amendment issues, President Trump could have done much worse than Brett Kavanaugh.
Marc John Randazza, JD, MAMC, LLM is the managing partner of Randazza Legal Group. He is a nationally-known First Amendment and intellectual property attorney and handles litigation and transactional matters nationwide.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.