28 Sep 20 | News and features
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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]
21 Mar 12 | Uncategorized
The UK Supreme Court has today upheld the “Reynold’s Defence” claim made by The Times in the libel case of Flood v Times Newspapers Limited (background here).
The judgment has been welcomed by many (read Siobhan Butterworth at Guardian Law), and it’s certainly gratifying that journalists acting in a responsible manner attempting to get to the bottom of a difficult story have eventually been vindicated, but this is not a moment for unqualified celebration.
If anything, it simply demonstrates the severe limitations of the Reynolds Defence. Only if you’re a newspaper with deep pockets, willing and able to take the case all the way to the Law Lords (as in the case of Jameel) or today’s Supreme Court, can Reynolds work.
The Reynolds Defence picks out 10 key criteria in judging whether a publication can be said to be acting in the public interest. These are:
- The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
- The nature of the information, and the extent to which the subject-matter is a matter of public concern.
- The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
- The steps taken to verify the information.
- The status of the information. The allegation may have already been the subject of an investigation which commands respect.
- The urgency of the matter. News is often a perishable commodity.
- Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
- Whether the article contained the gist of the plaintiff’s side of the story.
- The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
These are hurdles which may be applicable to people operating in well-resourced newsrooms with proper processes in place. But as we have seen in recent years, an increasing number of libel cases have been taken against comment writers, human rights groups and bloggers who are simply not in the same position to make the necessary steps to fulfil Reynolds. Furthermore, as Lord Hoffman has acknowledged, the Reynolds Defence can be seen as a series of obstacles as much as guidelines. And the steps do not, in and of themselves, constitute a public interest defence.
Index, as part of the Libel Reform Campaign, has been persistent in calling for a strong public interest defence. The Defamation Bill as it currently stands merely codifies the Reynolds Defence, making it likely that it will become even more difficult for smaller media organisations and individuals to use the defence. The Libel Reform Campaign has argued for a fairer and simpler public interest defence where the defendant would be required to demonstrate that publication is on a matter of public interest. If the defendant is successful in proving this, then he or she would only lose the case if the claimant was able to show that publication was irresponsible. If the Defamation Bill makes it to the Queen’s Speech, then the next hurdle will be to lobby for a true public interest defence to which everyone has access, not only those who can afford to take a case all the way to the Supreme Court.
30 Sep 10 | Index Index, minipost
The Supreme Court is to decide next week whether members of Westboro Baptist Church have the constitutional right to picket military funerals. Al Snyder, the father of a US marine whose funeral was accompanied by the protesters’ anti-gay and anti-Catholic demonstrations is seeking damages for emotional distress. The fundamentalist church, which has said that it plans to protest outside the court, will argue on 6 October that its actions are protected under the First Amendment. Snyder says the decision isn’t a free speech issue but a “case of harrassment“.
27 Jul 10 | Index Index, minipost, News and features
The first libel case in the new Supreme Court, Joseph v Spiller was heard on 26-27 July.
The case concerns Motown tribute act, the Gillettes, who sued after their former agent Jason Spiller posted on his website that the band were not professional and that they consider contractual terms and conditions to “hold no water in legal terms”.
William Bennett, representing Craig Joseph, a singer for the group who arranged their bookings, has argued that a “fair comment” defence should be rejected because the “comment” related to a false fact and no reference was made in the post to the truthful facts upon which the comment was based. In contrast lawyers for the agent, Spiller, contended that the false fact was not materially detrimental to Joseph and thus the defence should not fail. He further appealed to the justices to clarify and simplify the meaning of the “fair comment” defence, including renaming it “comment” to avoid misleading juries, since the defence protects both fair and unfair comments equally. A ruling, which could have serious effect on future definitions of fair comment, is expected in August or early September.
