An open invitation to Justice Neil Gorsuch and Janie Nitze to reply to their new book’s critics — First Amendment News 444

Once a sitting jurist ventures into the marketplace to promote his or her views, should such jurists likewise be open to give-and-take discussions in that venue? Do free speech principles not invite that kind of robust debate?

“By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation.” – Justice Neil Gorsuch

Five years ago, Justice Gorsuch published a New York Times bestseller titled “A Republic if You Can Keep It” with Janie Nitze and David Feder (both former Gorsuch law clerks). That same year, Ms. Nitze and Mr. Feder kindly accepted my invitation to do a Q&A for SCOTUSblog.

It is in that same spirit that I return by way of another invitation — this time in connection with a new book by Justice Gorsuch and Ms. Nitze titled “Over Ruled: The Human Toll of Too Much Law” (more on this in a moment).

To help illuminate the theme of “Over Ruled,” Justice Gorsuch (like other justices) took his message into the public square, having exchanges with, among others, Kyle Peterson of The Wall Street Journal, CBS’s Major Garrett, podcaster Hugh Hewitt, David Trulio of the Ronald Reagan Presidential Foundation and Institute, and New York Times columnist David French. 

Gorsuch and Nitze also participated in a public interview with Jeffrey Rosen at the National Constitution Center to discuss the Constitution and the history of Constitution Day. Such interactions are consistent with the epigraph to this post, which was drawn from Justice Gorsuch’s majority opinion in 303 Creative LLC v. Elenis.

While “Over Ruled” has received high praise in some quarters (Ilya Shapiro called it a “meticulously researched” book), the verdict has not been unanimous. This is not surprising in a democracy enriched by a hearty exchange of views. Enter Ankush Khardori, a senior writer for Politico and a former federal prosecutor at the Department of Justice, whose review was titled “Neil Gorsuch’s New Book Is an Embarrassment.”

While Khardori concedes that “there are some redeeming features of the book,” the lion’s share of his review takes challenging exception to both the theme and content of the Gorsuch-Nitze work. For example:

• “The book…is riddled with glaring factual omissions and analytic errors that seriously call into question its reliability and rigor.” 
• “It represents a remarkable attack by a sitting Supreme Court justice on the other two branches of government.”
• “Gorsuch provides a tidy and persuasive account of overzealous federal prosecutors, but he does not mention two important facts that change how you ought to see the case of [Yates v. United States].”
• “Nor is this an isolated problem in the book. A review by CNN produced multiple, unrelated instances in which Gorsuch omitted material facts from the stories he relays to readers.”

As Khardori reports it:

• “Gorsuch was not willing to speak with me or answer any questions about his book…”
• “After two months of trying and failing to get an audience with Gorsuch, I asked his publisher if he would comment simply on the problems with his chapter on John Yates.”
• “I never got a response from Gorsuch, but I did receive an unsolicited statement from…Janie Nitze…‘How can Politico complain with a straight face that our book didn’t address two facts about John Yates when Politico omitted those very same facts in a lengthy piece it published about the case in 2014,’ Nitze asked.” [The article referenced was by John Yates.]
• “‘The truth is,’ Nitze asserted, that ‘Politico and many other media omitted those facts…because they have nothing to do with why his story matters.’”

Judicial exchanges in the marketplace of ideas

While the adequacy of the Gorsuch-Nitze portrayal of the John Yates legal controversy might be sufficient, the dispute over it and related matters is not confined to Khardori’s arguments. For example, Ruth Marcus, writing in The Washington Post, has said this:

“Over Ruled” overstates the problem with government oversight, whether regulatory or criminal, and undervalues its importance and benefits. But different strokes. My beef in this column is not with Gorsuch’s more libertarian worldview. It’s with the license he takes in making his case about the “human toll.”

As for the Yates case, Marcus adds that one would “think that a Supreme Court justice would provide a fuller factual presentation.”

This raises two points:

1. Does the Yates discussion in “Over Ruled” warrant further elaboration from its authors?
2. More importantly, if justices (be they Neil Gorsuch or Ketanji Brown Jackson) venture into the public marketplace to promote their books, ought they likewise be open to continuing a vigorous discussion of their views in that same venue? That is, if such an exchange is commonplace in the judicial sphere (i.e., in judicial dissents), why should it not occur in the public sphere once a jurist has tapped into that realm to advocate their views?

A respectful invitation

Mindful of such concerns, I respectfully invite Justice Gorsuch and Ms. Nitze to respond to Khardori and any other critics of “Over Ruled.”

Related

• Ronald K.L. Collins, “353 books by Supreme Court Justices,” SCOTUSblog (Nov. 2, 2012)

Federal judge blocks DeSantis administration from threatening TV stations for airing abortion ads

• Danielle Abreu, “Judge blocks Florida from threatening TV stations over abortion ad: ‘It's the First Amendment, stupid’,” NBC/6 South Florida (Oct. 18)

A federal judge has ordered Gov. Ron DeSantis’ administration to stop threatening to prosecute local TV stations for airing a political ad promoting an abortion-right referendum that will be on November’s ballot.

In a sharply worded ruling, U.S. District Judge Mark E. Walker of the Northern District of Florida issued a temporary restraining order calling threats by the Florida Department of Health “unconstitutional coercion.”

“To keep it simple for the State of Florida: it’s the First Amendment, stupid,” Walker wrote in his ruling.

At the center of the legal dispute is Amendment 4, a measure that would add an amendment to the state constitution to protect the right to abortion until fetal viability, which is considered to be somewhere over 20 weeks into pregnancy. The amendment would undo a six-week abortion law that took effect earlier this year.

Chemerinsky on university officials condemning hateful expression

• Erwin Chemerinsky, “College Officials Must Condemn On-Campus Support for Hamas Violence,” The New York Times (Oct. 20)

We should expect — and demand — that campus officials respond to a celebration of Hamas in the same way they would to a Klan rally praising racist violence. The speech of those celebrating Hamas is protected by the First Amendment on public university campuses, and at private universities that choose to adhere to free speech principles, because there is a right to express all ideas, even very offensive ones. But that does not mean universities can or should do nothing.

Title VI of the 1964 Civil Rights Act prohibits colleges receiving federal funds from discriminating on the basis of race, color or national origin. This includes prohibiting harassment, including when there is a hostile environment. Such an environment exists where there is conduct that is sufficiently severe, pervasive or persistent that it interferes with individuals’ ability to participate in or benefit from their college experience. The Education Department has made clear, as have the courts, that this conduct includes discrimination against Jewish students.

Colleges can be in violation of Title VI if they determine that a hostile environment exists but don’t take steps to end the harassment or prevent it from recurring. The Education Department has identified several steps universities can take, including providing counseling and support to students affected by harassment and establishing “a welcoming and respectful school campus.”

Related

• Eugene Volokh, “Journal of Free Speech Law: ‘Academic Freedom & the Politics of the University’ by Joan Wallach Scott,” The Volokh Conspiracy (Oct. 20)

Catherine Ross on public school library book bans

• Catherine J. Ross, “Are ‘Book Bans’ Unconstitutional? Reflections on Public School Libraries and the Limits of Law,” Stanford Law Review (2024)

Since 2021, the number of demands that public school libraries remove materials from their shelves based on content has accelerated almost too quickly to track. Book removal incidents are more prevalent today than at any time since data became available, doubling between 2021 and 2022. Such “book bans” (as opponents characterize them) or “targeted book removals” (as the courts call them) arise in the context of intense political and cultural divisions and, in turn, exacerbate those conflicts. Indeed, national organizations as well as politicians at every level have played a role in the contemporary attack on library materials, which disproportionately targets books about or by LGBTQ+ people and racial and ethnic minorities. Targeted book removals have led to a spate of litigation, most of it still working its way through the judicial system.

While it might seem a simple proposition that removing books from school libraries based on their content always violates the First Amendment, the governing law is far more complex. Public schools exist in a special constitutional zone in which students and others have a limited right to free expression. Libraries play a special role within that zone, it is argued, as a place devoted to free inquiry, where students have asserted a right to receive information.

This Essay delves into the granular distinctions among settings, decisionmakers, and materials in public schools before analyzing the current constitutional status of targeted book removals. When courts consider legal challenges to book removals, they face a number of complexities, including (1) the fragility and diminished stature of the sole Supreme Court case addressing library book removals, which is the basis of students’ right to receive information; (2) limited (or no) guidance from appellate courts; and (3) the need to assess the standing of a variety of plaintiffs (including students, teachers, and librarians as well as authors and publishers) in relation to a range of distinct constitutional claims that receive different levels of judicial review. Meanwhile, competing visions of parental rights add to the stakes.

The Essay reveals the jurisprudential obstacles to successfully challenging targeted book removals in court. It argues, however, that — with the right plaintiffs — a range of constitutional arguments offer a path to keeping controversial library books available to public school students in every jurisdiction.

More in the news

• Emily Pickering and Wiann Wilson, “Knight First Amendment Institute hosts symposium, exhibition on exchange of ideas across borders,” Columbia Spectator (Oct. 21)
• Patrick Dorrian, “Fired Hawaii Deputy Prosecutor Advances First Amendment Lawsuit,” Bloomberg Law (Oct. 21)
• “Elon Musk awarding $1 million each day to signers of his petition to support free speech,” News 4, (WOA, (Oct. 20)
• Zoe Goldstein, “ACLU, Indigenous artist sue town of Vail, claiming First Amendment violation,” Sky-Hi News (Oct. 20)
• Sean Stevens, “A year in campus speech controversies — What does the data reveal?” FIRE (Oct. 15)
• Susanna Granieri, “Two FIRE Attorneys on a Defamation Lawsuit Against an Oklahoma Historian,” First Amendment Watch (Oct. 15)
• “Federal court blocks University of Maryland’s unconstitutional ‘Expressive Event’ ban,” FIRE (Oct. 1)

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

• Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U.S. (2024) (per curiam).)
• Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U.S. (2024) (per curiam).”)

Pending petitions

• 360 Virtual Drone Services LLC v Ritter
• Coalition Life v. City of Carbondale

Petitions denied

• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu
• Henderson v. Texas

Last scheduled FAN

FAN 443: “Floyd Abrams, ‘Journalists need stronger protections than the Supreme Court has recognized’”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.