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President Donald Trump wanted another Antonin Scalia for the U.S. Supreme Court. On Tuesday, Trump tapped Neil Gorsuch, a Harvard Law School educated judge whose prominent clerkships, impeccable writing and undying commitment to hew closely to the text of the U.S. Constitution and statutes have drawn comparisons to the late conservative idol.
Gorsuch, 49, will now go through the confirmation process, and with Republicans snubbing former President Barack Obama’s pick Merrick Garland and a nation divided over Trump’s executive orders on immigration, it will surely be contentious. Few individuals will be subjected to as much scrutiny as Gorsuch in the coming weeks. Many will look to divine how he will rule on controversial subjects. Gorsuch himself may not be keen on the Scalia comparisons nor attempts to figure out his judicial philosophy.
“I resist pigeon holes,” he told a Senate judiciary committee in 2006 when George W. Bush successfully nominated him to the 10th Circuit Court of Appeals. “I think those are not terribly helpful, pigeon-holing someone as having this philosophy or that philosophy. They often surprise you. People do unexpected things and pigeon holes ignore gray areas in the law, of which there are a great many.”
With so much at stake, there will nevertheless be ample prognostication. What will he mean for entertainment and media? Surely, coastal liberals will be concerned about a judge whose ideological rating, according to Nate Silver’s FiveThirtyEight, puts him to the right of Scalia as well as one of the runner-ups, William Pryor, who once asserted, “Abortion is murder, and Roe v. Wade is an abominable decision.”
That said, despite the conservative bent, Hollywood could do far worse than Gorsuch. While his articulated jurisprudence on such issues as the death penalty won’t win Sean Penn as a friend, he’s also unlikely to upset established norms around the First Amendment. That’s important given Trump’s expressed goal of opening up libel laws and flirtation with condemning free speech.
The 2011 decision, Jerry Lee Bustos v. A&E Television Networks, offers an example.
In that case, a federal prisoner sued the cable network after being shown on Gangland: Aryan Brotherhood. Bustos took issue with the suggestion that he was a member of the Aryan Brotherhood gang and claimed that it had devastated his popularity around the jail.
Gorsuch affirmed a dismissal of the defamation 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?” asked Gorsuch in the opening of his 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.”
One might be tempted to not make much of this opinion and throw it alongside others where the judge hasn’t exactly been friendly to convicted felons. But then, much later in Bustos v. A&E, comes a pretty nice articulation why something that may be deemed as “fake news” by Trump might not rise to something that’s actionable.
“By requiring a significant impact on the plaintiff’s public reputation when compared to the truth, the material falsehood requirement works as a screen against trivial claims. And this requirement is hardly unique to defamation law; the plaintiff or prosecution in many tort and criminal contexts? — fraud and perjury are two obvious examples — ?must also prove not just a falsehood but a material falsehood as part of its case-in-chief. After all, without such a limitation, every error in detail?, no matter how slight or irrelevant in the scheme of things?, could lead to not just protracted civil proceedings but also criminal liability. And while the law is often demanding, rarely is it so punctilious.”
That reasoning showcases how Gorsuch is careful about letting the law become too punitive. It also demonstrates how Gorsuch can be deferential to protections premised in the U.S. Constitution. Other cases tell a similar story. For example, back in 2007, he joined fellow 10th Circuit judges in refusing to punish a local television station for broadcasting the identities of two former undercover police officers
Of course, not everyone will agree with his reading on liberty. In particular, his concurrence in Hobby Lobby Stores v. Seblius — over whether religious-minded employers were substantially burdened by Obamacare’s contraceptive-coverage requirement — features the way Gorsuch tends to line up with those asserting an exercise of their religious beliefs (although it didn’t stop the judge in another case from affirming the drug distribution conviction of a couple who claimed marijuana is a deity and sacrament.) He’s also not quite a libertarian. He once wrote a book carefully analyzing the debate around assisted suicide and euthanasia before arguing against legalization.
As for Gorsuch’s take on other non-social issues impacting Hollywood, it could be true that his approach may favor the business side to the detriment of consumers. Unlike Scalia (or Garland), he’s not a fan of Chevron, an important precedent where courts defer to government agencies to interpret ambiguous language in statutes. This could throw roadblocks on onerous regulations, as industry might wish. Then again, sometimes Hollywood wishes the government to be assertive, and if agencies aren’t given discretion to police newer forms of intellectual property infringement, an anti-Chevron stance might not be so wonderful for studios.
Speaking of intellectual property, Scalia may have upset some heads in the industry by not letting studios like 20th Century Fox dress up plagiarism charges as trademark infringement or by taking Aereo’s side in the performance of copyrighted programming. There’s no perfect way to predict how Scalia’s potential replacement might rule on future IP controversies, although it’s worth checking out Gorsuch’s almost Scalia-esque deconstruction of “originality” in Meshwerks v. Toyota Motor Sales, a case over whether digital models of cars and trucks warranted copyright protection.
There, he spoke about the difficulties of distinguishing independent creation “in an age of virtual words and digital media” and went through the history of how photography once challenged copyright law before arriving at the conclusion that despite the creative labor and skill invested by Meshwerks in their modeling, the product wasn’t original enough.
Does this suggest Gorsuch is not a copyright maximalist?
“Digital modeling can be, surely is being, and no doubt increasingly will be used to create copyrightable expressions,” he wrote. “Yet, just as photographs can be, but are not per se, copyrightable, the same holds true for digital models. There’s little question that digital models can be devised of Toyota cars with copyrightable features, whether by virtue of unique shading, lighting, angle, background scene, or other choices. The problem for Meshwerks in this particular case is simply that the uncontested facts reveal that it wasn’t involved in any such process, and indeed contracted to provide completely unadorned digital replicas of Toyota vehicles in a two-dimensional space. For this reason, we do not envision any ‘chilling effect’ on creative expression based on our holding today…”
Like many good judges, Gorsuch keeps one eye on the future and one eye on the past. (Sometimes, Hollywood’s past.) Whether or not his fancy pen will be part of the highest court in the land, that decision is now in the hands of the legislative branch.
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