JUDGE KETANJI BROWN JACKSON AND THE FIRST AMENDMENT

The Reporter’s Committee for Freedom of the Press recently compiled a report on Supreme Court nominee Ketanji Brown Jackson’s rulings on First Amendment matters.  Given her relatively brief tenure it is not an extensive resume, but there are some interesting decisions.  It may be a little tough to tell how she feels about the First Amendment, but safe to say she is hardly an extremist.

In the libel arena, Judge Jackson sided with plaintiffs in two cases questioning whether the facts in the case satisfied the actual malice standard.  In both cases, the defendants argued that plaintiffs failed to satisfy the standard, but Judge Jackson rejected their arguments.  In one of those cases, Judge Brown was reversed by then Judge Brett Kavanaugh who was at that time seated on the D.C. Circuit.  In his view, an “honest misinterpretation” of a court pleading – which led to the alleged libel – did not constitute actual malice.

In a case concerning an anti-panhandling ordinance, Judge Jackson ruled that the ordinance was a content based restriction subject to strict scrutiny.  She also found that the plaintiff plausibly established the existence of less restrictive alternatives for achieving its objectives.  That case is still pending. In another case challenging the a law requiring mandatory “country of origin labeling” on certain commodities, including meat, Judge Jackson found that the law did not violate the First Amendment rights of meat producers who challenged it.  That decision was affirmed ultimately by the D.C. Circuit en banc.

In her confirmation hearing, Judge Jackson said she didn’t have a “judicial philosophy,” but rather employed a methodology.  She essentially applies the facts to the law and lands where that process takes her.  In the RCFP report, this approach comes through.  So don’t assume too much about how Justice Jackson will rule when she takes her seat on the Supreme Court.  She may surprise.