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. ….