JUDGE AMY CONEY BARRETT AND THE FIRST AMENDMENT
The nomination of fellow Notre Dame Law alum Judge Amy Coney Barrett has generated considerable controversy. Some of that is related to the process. There are those who feel that the winner of November 3d’s Presidential election should make the nomination. That appeared to be the unwritten rule in 2106 when President Obama nominated Judge Merrick Garland, only to see the Senate sit on their collective hands and not conduct a hearing, given the (sort of) pending 2016 election. Apparently, at some point between 2016 and 2020, there was an unwritten amendment to the unwritten rule, such that it is all of a sudden vitally important to confirm Judge Barrett ASAP.
And aside from the procedural controversy, progressives are concerned with Judge Barrett’s expressed views on abortion and gun control. Given that her appointment will leave the court in a 6-3 conservative versus progressive split, one can understand the concern coming from that side of the aisle.
But I’ve been wondering about how Judge Barrett might view the First Amendment and other matters that might affect the journalists I work with. So I was pretty excited when I saw this headline: “Would Justice Amy Coney Respect Press Freedom?” I was hoping it would shed light on the subject. Unfortunately, it really didn’t. The premise is essentially that President Trump appointed her, and President Trump hates the press, so look for anti-press rulings.
A more accurate assessment comes from The Institute for Free Speech. And their report is that she is really a blank slate. She’s been a Judge on the Seventh Circuit Court of Appeals since 2017, and in that time has apparently not written on the issue. It appears that she didn’t weigh in as an academic either.
I do think there are some pressing issues in the First Amendment world, not the least of which is the future of New York Times v. Sullivan – the 56 year old precedent that is the foundation for First Amendment jurisprudence in the world of journalism. Judge Barrett’s former boss, Justice Antonin Scalia was not a fan of the holding, nor is Justice Thomas.
So, it might be nice to ask Judge Barrett in her confirmation hearing just what she thinks about the holding in that case. Was it correctly decided? If not, why not? And what should the court have done?
If a future court were to overrule Sullivan, the fallout would be tremendous. We have a right to know where she stands on this.