Trump Appointees Will Shape Free Speech

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“Free Speech” is a monthly column by Chris Finan, director of the American Booksellers for Free Expression (ABFE), that shares his personal thoughts and opinions on a broad range of free expression issues; the views expressed do not necessarily reflect those of the American Booksellers Association. Finan welcomes comments and suggestions at [email protected].

ABFE Director Chris Finan

Freedom of speech is guaranteed by the Constitution, but government officials play an important role in determining how much of it we really enjoy.

President Donald J. Trump has selected two men who could significantly affect the exercise of First Amendment freedoms: Attorney General Jeff Sessions and Neil M. Gorsuch, the federal appeals court judge who has been nominated to the U.S. Supreme Court.

Many Democrats have questioned whether Sessions, formerly a senator from Alabama, will defend the liberties guaranteed by the Bill of Rights as vigorously as his immediate predecessors, Eric Holder and Loretta Lynch.

Will Sessions be sensitive to the importance of free speech issues? In the Senate, he was a hawk on national security. A strong supporter of the USA Patriot Act, he opposed a bill passed in response to Edward Snowden’s revelation that the National Security Agency was collecting the telephone records of millions of American citizens.

Booksellers and the rest of the book community are particularly interested in whether Sessions will agree to extend protections for the privacy of bookstore and library records. We have been fighting to restore the safeguards for reader privacy since the passage of the Patriot Act in 2001. The Patriot Act gives the government the power to secretly search any records that are “relevant” to a terrorism investigation and could be used to force a bookstore or library to turn over the purchase or borrowing records of all their patrons.

While we have so far failed to convince Congress to amend the Patriot Act, Attorney General Holder agreed in 2010 that when applying to the Foreign Intelligence Surveillance Court for a warrant to search a bookstore or library the FBI will provide a statement of “specific and articulable facts” to show that the target of the search is a suspected terrorist.

This policy helps ensure that the Patriot Act will not be used to conduct fishing expeditions in reader records. In August 2016, Loretta Lynch, Holder’s successor, said the Justice Department would continue to follow this procedure until further notice. But Sessions is not bound by that promise and can discontinue it at any time.

The Campaign for Reader Privacy, whose members are the American Booksellers Association, the American Library Association, the Association of American Publishers, and PEN America, will be writing to Attorney General Sessions soon to ask him to reaffirm the promise to protect bookstore and library records.

Sessions was confirmed in the Senate by a vote of 52–47. Gorsuch will also face opposition. People for the American Way is urging the Senate to reject him as a “right-wing extremist” who will “put ideology above the Constitution.” It says his record as a judge shows that he will favor corporations over “the rights of everyday people.”

But ideological differences don’t necessarily determine a judge’s position on free speech. Libertarian-minded judges often join their liberal brethren in striking down restrictions on speech. Antonin Scalia, whom Gorsuch would replace, was deeply conservative but also had a strong record in First Amendment cases. Gorsuch was a clerk for Justice Anthony Kennedy, another conservative who consistently supports free speech.

One of the best litmus tests for determining a judge’s position on free speech is where he or she stands on libel. We usually hear about libel cases when someone is suing a media company. But libel law also affects a citizen’s right to criticize the government.

In 1964, the Supreme Court unanimously overturned a libel judgment against the New York Times. L.B. Sullivan, a city commissioner in Montgomery, Alabama, had sued the Times for publishing an ad criticizing him and other Montgomery officials for their harsh treatment of student protesters. The ad had been placed by supporters of the Civil Rights Movement, and it contained several minor errors that Sullivan claimed had damaged his reputation.

Writing for the court, Justice William Brennan observed that in the course of a heated debate advocates are bound to make mistakes. If these are punishable as libel, people will be afraid to speak freely. He declared that public officials can only sue if they can show that erroneous statements about them are made with “actual malice.”

Gorsuch has strongly supported the definition of libel set forth in New York Times v. Sullivan. In Bustos v. A&E Television Networks, a prisoner, Jerry Lee Bustos, sued for libel after a television show falsely identified him as a member of the Aryan Brotherhood, a white supremacist organization. Bustos acknowledged that he had engaged in drug trafficking with inmates who were members of the brotherhood.

Gorsuch rejected the libel claim. “Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise?” he asked in his written opinion. “The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true.” 

Gorsuch has supported free speech in other cases, too. He upheld the First Amendment rights of a New Mexico school superintendent who was fired for telling the state attorney general that the school board was meeting in violation of an open meetings law.

Gorsuch also rejected a claim by undercover police officers in Albuquerque that a TV news broadcast had violated their privacy after they were falsely implicated in a sexual assault, ruling that the news broadcast that revealed their names was reporting on a matter of legitimate public concern. 

Whatever other grounds might exist for rejecting the Gorsuch nomination, he appears to be someone who agrees with Justice Brennan about the central role that free speech plays in our democracy. In New York Times v. Sullivan Brennan wrote:

“We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”

In times like these, when the country is bitterly divided and many express a desire to suppress speech, we need Supreme Court justices who will defend the First Amendment.