Coney Barrett’s free speech stance still unclear as nomination goes to Senate


Rachel Malehorn, WikiCommons

As Amy Coney Barrett’s nomination to the Supreme Court advances to the Senate – despite a boycott from Democrats – it is still unclear where she stands on free speech.

Coney Barrett did little to allay fears over her positions on key constitutional issues during her confirmation hearings for the vacant seat on the US Supreme Court.

Members of the Senate Judiciary Committee questioned the judge on issues including free speech and the First Amendment.

The First Amendment gives five separate protections to citizens. Namely the freedoms of speech, religion, press, protest and redress.

When asked by Republican Senator Ben Sasse what the freedoms protected by the amendment are, Coney Barrett was unable to recall the latter.

The freedom of redress gives citizens of the USA the right to petition or complain to government authorities at the federal, state and local level without fear of reprisals or punishment. It is a vital part of the constitution and very much a contemporary issue.

There has been extra scrutiny on issues around the First Amendment ever since the protests against the killing of George Floyd broke out in May this year.

With the typical rigour of judicial committee hearings, Coney Barrett could be forgiven for what was likely an innocent slip-up. However, the response will have done little to calm the nervousness over her appointment from free speech campaigners and members of the press.

The judge, 48, does not have an extensive record on dealing with with issues of First Amendment freedoms and her position on them has therefore been difficult to interpret.

On whistleblower cases, for example, Coney Barrett has joined different sides of the debate in different cases.

In August this year, Coney Barrett’s court favoured the First Amendment and the right of a public employee to raise alarm. However, in the case of Kelvin Lett, a Chicago investigator who refused to change a police report under direction from his supervisor, Coney Barrett ruled: “Lett may have had a good reason to refuse to amend the report [but this] does not grant him a First Amendment cause of action.”

On other issues, Coney Barrett was repeatedly accused of being “evasive” during the hearings, particularly on more controversial matters; the Democrats have repeatedly alluded to her Catholic faith as a potential problem.

However even before her nomination, she has expressed her belief in the importance of the separation of church and state.

“I think one of the most important responsibilities of a judge is to put their personal preferences and beliefs aside. Our responsibility is to adhere to the rule of law,” she said.

The Trump administration has faced repeated criticism from free speech groups since taking office in 2016. Among the criticisms are the crackdown on Black Lives Matter protests across the country, as well his repeated attacks on press freedoms.

Index, along with other free speech organisations have raised concerns over harms to media freedom in the country and in particular since the outbreak of the coronavirus pandemic.

The US Press Freedom Tracker has logged 219 journalists attacked, 62 equipment damages, 71 journalists arrested and over 10 occasions where equipment was searched or seized in this year alone.

As Trump’s Supreme Court nominee, these issues naturally fell on Coney Barrett to talk at length on during the hearings, but she gave little insight into her stance on media freedom.

Coney Barrett’s addition would give the Supreme Court a 6-3 conservative majority, heightening concern over the consequences of Trump’s potential election victory and the impact on policy should Joe Biden win instead.[/vc_column_text][/vc_column][/vc_row]

Trump’s Supreme Court nominee: where does Coney Barrett stand on free speech?


The White House, WIkiCommons

After the death of Ruth Bader Ginsburg, President Donald Trump was quick to fill the hole left by her on the Supreme Court.

As he nominated Amy Coney Barrett for the role over the weekend, Trump called Justice Ruth Bader Ginsburg “a true American legend…a legal giant, and a pioneer for women”.

But what of Coney Barrett?

Announcing his choice for the vacant role, the president said Coney Barrett possessed “a towering intellect, sterling credentials, and unyielding loyalty to the constitution”.

As with any nominee to the Supreme Court, there has inevitably been a focus on Barrett’s stance on a multitude of issues, including particular scrutiny on key issues such as abortion and LGBT rights. However, Coney Barrett’s stance on matters of free speech has been difficult to determine.

As the Supreme Court acts as the USA’s highest court, its rulings on all matters, not just free speech, are vital. The highest court in the land has the final say and therefore, for Index, exactly where each judge stands on their own personal interpretation of the First Amendment is of paramount importance to judging the extent of the limitations to free speech.

The Institute for Free Speech – an organisation set up to “promote and defend the First Amendment” – recorded the actions of the initial candidates, for the position including the successful nominee Coney Barrett, in an attempt to gauge their overall position on free speech law. Coney Barrett does not have extensive records on dealing with cases concerning the First Amendment, but research done by IFS concludes that there are positive signs among what little cases there are.

Coney Barrett, currently judge of the United States Court of Appeals for the Seventh Circuit, has been involved in a number of free speech cases since 2018. IFS reports that “Barrett may be willing to expand free speech protections in limited but nevertheless important contexts”.

But the 48-year-old’s record on dealing with whistle-blower cases has been mixed. In August this year, Coney Barrett’s court favoured the First Amendment and the right of a public employee to raise alarm. However, in the case of Kelvin Lett, a Chicago investigator who refused to change a police report under direction from his supervisor, Coney Barrett ruled: “Lett may have had a good reason to refuse to amend the report [but this] does not grant him a First Amendment cause of action.”

Coney Barrett has also faced scrutiny over her faith, with some questioning if her Catholic faith hinders her decisions. Pro-choice activists have consequently raised concerns over her views on abortion rights and whether she will curtail freedoms in that respect. That said, in an interview earlier this year, the judge stated: “I think one of the most important responsibilities of a judge is to put their personal preferences and beliefs aside. Our responsibility is to adhere to the rule of law.”

Conservative issues and tensions in the country have heightened since the Black Lives Matter protests erupted in May, after the killing of George Floyd. According to Fox News’ Harmeet Dhillon, there is clear friction “between government speech and the creation of public forums for expression” regarding the use of murals by BLM protestors.

Coney Barrett, a conservative herself, could well be ruling on this issue should it face the Supreme Court. The Washington Post has been clear to the point out that the death of Bader Ginsburg was a clear opportunity for conservatives to “cement their dominance” with a 6-3 majority on the court.

While Coney Barrett herself insists that personal beliefs should be kept aside, the majority may prompt conservatives to bring back more contentious issues to the court. The Post said: “The court’s conservative wing has outvoted liberals to carve out religious exemptions from federal laws; to strike down campaign-finance regulations as violations of the First Amendment; and to allow gerrymanders under the view there was no way to determine when a partisan legislature had gone too far.”

The jury, it seems, is still out, which is worrying for us at Index. The question of her commitment to the First Amendment and what it protects for freedoms more generally is of critical importance. Of course it comes at a crucial time, after years of a Trump administration in which freedoms, in particular of the media, have been chipped away.[/vc_column_text][three_column_post title=”You might also like to read” category_id=”5641″][/vc_column][/vc_row]

Choose your moment: the inspirational Ruth Bader Ginsburg

[vc_row][vc_column][vc_single_image image=”114982″ img_size=”full” add_caption=”yes”][vc_column_text]Ruth Bader Ginsburg did not set out to be an advocate for gender equality. Coming of age during the McCarthy Era of the 1950s, when freedom of speech and freedom of association were subject to intense scrutiny and repression in the United States, her initial goal was to uphold constitutional rights.

“There were brave lawyers who were standing up for those people [targeted by McCarthyism]  and reminding our Senate, ‘Look at the Constitution, look at the very First Amendment. What does it say? It says we prize, above all else, the right to think, speak, to write, as we will, without Big Brother over our shoulders’,” she said in a 2011 interview. “My notion was, if lawyers can be helping us get back in touch without most basic values, that’s what I want to be.”

But as one of only nine female students in her 552-strong class at Harvard Law School, she quickly realised that she would face an uphill battle. This put her on track not only to become a feminist icon, but to become a voice for the few.

“Throughout her career she has not been afraid to push back against the power of the crowd when very few were ready for her to do so,” Index on Censorship magazine’s outgoing editor-in-chief Rachael Jolley wrote in her most recent editorial, not knowing then that RBG’s was to die the following week.

As a Supreme Court Judge, her dissenting opinions (which opposed the majority views that gave rise to judgements) became legendary. The fact that dissents do not carry the weight of the law did not dissuade Ginsburg from putting forward extensive opinions.

“Dissents speak to a future age,” she explained. “But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.”

Ginsburg knew how to use her voice, but she also knew when to use it. “In every good marriage, it helps sometimes to be a little deaf,” she often told students, repeating the advice offered to her by her mother-in-law on her wedding day. It was advice that she followed assiduously, she said. “Reacting in anger or annoyance will not advance one’s ability to persuade.”

She often moulded her silences into thoughtful pauses. “This can be unnerving, especially at the Supreme Court, where silence only amplifies the sound of ticking clocks,” wrote Jeffrey Toobin, who profiled Ginsburg  for the New Yorker in 2013. But her considered interludes likely amplified her voice too.

Ginsburg also understood how to express herself in other ways. In her later years at the Supreme Court she began to accessorize, wearing a golden flower-like crochet collar on days where she would announce a majority view, and a black beaded collar for dissents.

She apologised after criticising Donald Trump in July 2016, saying that as a judge her comments were “ill-advised” and that she would be “more circumspect” in the future. But her decision to wear her so-called “dissenting collar” the day after Trump’s election spoke volumes nonetheless.

Ginsburg’s respectful and dignified expression, her consensus-building approach, and her mission to uphold women’s rights, alongside other fundamental freedoms, made her an antidote to the Trump Era.

At a time when it seems so crucial, Ginsburg inspires us to choose our moment – and our words – carefully, and to stand up for those who need our support. And, when necessary, to fearlessly diverge and wear our dissent with purpose.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You might also like to read” category_id=”581″][/vc_column][/vc_row]