Apart from the establishment clause, the Supreme Court has for the last decade taken a strong view of the First Amendment’s protections. Judge Neil Gorsuch’s decisions on the U.S. Court of Appeals for the 10th Circuit align with that trend. In many ways, Gorsuch’s opinions in this area are similar to those of the late Justice Antonin Scalia – with the possible exception that Gorsuch has been more willing to find not only that the First Amendment has been violated, but also that defendants were not entitled to qualified immunity in those cases. It is unclear whether Gorsuch will continue that trend if he is confirmed, because cases in front of the Supreme Court tend to be closer than cases in the courts of appeals, and so qualified immunity is typically easier to get. I focus on cases in which Gorsuch has written a majority opinion, concurrence, or dissent, without regard to whether the decisions in question were precedential, on the theory that Gorsuch’s writings will provide the greatest insight into his mindset.
Freedom of speech, the press and assembly
With few exceptions, Gorsuch has been willing to find in favor of First Amendment plaintiffs and against defendants attempting to assert immunity against a First Amendment claim.
In Walton v. Powell, in 2016, Gorsuch wrote a unanimous opinion affirming a district court’s decision to allow a government employee’s Section 1983 claim alleging that she was fired for her political affiliation to proceed. The court held that the McDonnell-Douglas burden-shifting framework does not apply to First Amendment retaliation claims, which are governed by a more plaintiff-friendly standard. It then applied that standard to uphold the employee’s claim, and deny the defendant’s qualified immunity defense.
In 2007, in Casey v. West Las Vegas Independent School District, Gorsuch wrote an opinion finding that a school district superintendent’s statements to her own school board were not protected citizen speech, but her statements to the state attorney general were. The court further held that qualified immunity was not available because it had been long established that when public employees speak to outside authorities on matters of public concern for reasons that are not job-related, their speech is protected.
In Rounds v. Clements, in 2012, Gorsuch wrote an opinion holding that a state prisoner’s First Amendment retaliation claim, which sought prospective relief, did not run afoul of the Eleventh Amendment. The prisoner, an electrician by trade, alleged that he suffered retaliation because he had reported to prison superiors that other prison officials were asking him to perform shoddy electrical work. The court held that the prisoner stated a claim, and that the claim fell under the Ex Parte Young exception to Eleventh Amendment immunity insofar as the electrician sought to be restored to his former status as a privileged prisoner.
In a notable 2016 dissent in A.M. v. Holmes, Gorsuch argued that a New Mexico statute prohibiting disruption in school did not apply to a seventh-grader who had pretended to burp in class. Distinguishing “classroom antics” from actions that “substantially interfere” with the “actual functioning” of the school, Gorsuch argued that the statute had been interpreted more narrowly than its text suggests, and disagreed with the majority’s decision to read it more broadly. The dissent did not rely on the First Amendment, but it suggests that Gorsuch may be willing to protect a substantial amount of on-campus speech.
Although these decisions all strongly suggest that Gorsuch will happily allow free speech claims to move forward, there are some open questions about how protective he will be of speech at the margins.
In Mink v. Knox, in 2010, Gorsuch wrote a concurrence in a case allowing a Section 1983 claim against a deputy district attorney who had pursued a criminal libel charge against the publisher of an Internet-based journal. The court held, and Gorsuch agreed, that because the journal was engaged in parody, the speech was protected even as it related to matters of private concern. Gorsuch wrote separately to argue that the result was compelled by circuit precedent, chiding his colleagues for going further to defend that precedent. Although he did not tip his hand, the separate opinion suggests that Gorsuch may be more willing than some of his colleagues to permit libel claims against a parody.
In 2016, in Alvarez v. Grosso, Judge Gorsuch wrote an unpublished opinion holding that civilians had no right to attend military court-martial proceedings. The court held that commanders have wide discretion to bar civilians from the base, and that civilians have no constitutionally protected right to speak on military bases or to observe court martial trials.
The First Amendment and campaign finance
In Riddle v. Hickenlooper, in 2014, the 10th Circuit struck down a Colorado statute that effectively limited individual campaign contributions to write-in candidates to $200 while permitting donors to give up to $400 to candidates who ran in primaries. The statute had been challenged principally on equal protection grounds, but the First Amendment status of campaign contributions was also front and center. In a concurring opinion, Judge Gorsuch argued that “the act of contributing to political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate—both expressly protected First Amendment activities.” That language may suggest that Gorsuch is broadly sympathetic to the idea that money in politics is just another form of expression, and would be skeptical of campaign finance limits. On the other hand, Gorsuch cautioned against adopting a level of scrutiny for campaign contribution cases, noting that it wasn’t necessary to do so in order to resolve the case, and that the Supreme Court’s decisions had been unclear about what level of scrutiny applies.
The petitions clause
In 2007, in Van Deelen v. Johnson, Gorsuch wrote an opinion reversing a grant of summary judgment to county officials who had allegedly retaliated against a taxpayer who had filed appeals and lawsuits to challenge property tax assessments. Defending the right to petition the government for redress of grievances, Gorsuch wrote that “[w]hen public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise.” Good luck, President Trump.
The religion clauses
In American Atheists, Inc. v. Davenport, in 2010, a 10th Circuit panel had held that 13 12-foot crosses erected on public land to memorialize deceased Utah highway patrol officers ran afoul of the establishment clause because a reasonable observer would regard those memorials as endorsing Christianity. Rehearing en banc was denied, and Gorsuch dissented from that denial. In the dissent, Gorsuch argued both that the 10th Circuit had strayed from the Supreme Court’s precedents, which had not recently applied the “reasonable observer” test to public displays, and that the 10th Circuit had applied the test in an expansive way by treating the “reasonable observer” as somebody who is “biased, replete with foibles, and prone to mistake.” The dissent sends a very clear signal that Gorsuch is on board with the more conservative understanding of the establishment clause embraced by the late Justice Antonin Scalia.
Gorsuch’s views on free exercise issues are less clear because, to the best of my knowledge, he has not written an opinion in a case in which a constitutional free exercise challenge was brought unaccompanied by a statutory challenge under the Religious Freedom Restoration Act (RFRA) or Religious Land Use and Institutionalized Persons Act (RLUIPA). In 2013, he wrote a concurring opinion in Hobby Lobby Stores, Inc. v. Sebelius, arguing that the individual owners of the Hobby Lobby stores (the Green family) were entitled to relief under RFRA. Gorsuch explained that because the Greens “are the human actors who must compel the corporations to comply with the [Affordable Care Act’s contraception] mandate,” their own personal religious beliefs were burdened by the mandate. In the process, Gorsuch argued:
No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs. This isn’t the case, say, of a wily businessman seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation. See United States v. Quaintance, 608 F.3d 717 (10th Cir.2010) (an example of just that). And to know this much is to know the terms of the Religious Freedom Restoration Act apply. The Act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.
Although this case arose under RFRA, and not the First Amendment, Gorsuch nevertheless signaled that he might take a very strong view of free exercise principles, consistent with the Supreme Court majority that affirmed the 10th Circuit’s decision in Hobby Lobby.
On the other hand, in 2014, in Ali v. Wingert, Judge Gorsuch wrote an opinion denying relief to a prison inmate who wanted to use only his newly adopted Muslim name on mail envelopes, instead of using both his Muslim name and his former name. The claims were brought under RLUIPA and also the First Amendment’s free exercise clause. Rejecting the RLUIPA claim, Judge Gorsuch acknowledged that if “a prisoner’s sincerely held religious beliefs forbade any mention of a former name,” then there might be a substantial burden on the inmate, but found that the facts in the complaint did not make such an allegation. “Federal courts certainly are not arbiters of religious scripture or dogma, but to establish a RLUIPA claim they do require from the claimant some well-pleaded facts suggesting a substantial burden on a sincere religious exercise.” The First Amendment free exercise claim failed for the same reason.
Also, in Abdulhaseeb v. Calbone, in 2010, Gorsuch wrote a concurring opinion in a RLUIPA case where the inmate alleged that a halal diet was not available. Gorsuch acknowledged that the law does not permit an institution to force an inmate “to choose between violating his religious beliefs and starving to death.” But he made it clear that he would not go further to hold that RLUIPA prohibits the prison from taking action that requires a prisoner to occasionally miss a normal meal because he refuses to eat the food, or that the statute requires any other accommodation for religious diet other than accommodating major religious holidays and the need to eat enough to live.