President Donald Trump has made it clear that he doesn’t really like the news media. He’s called the reporter pen out at campaign rallies and said CNN White House correspondent Jim Acosta was “fake news” at a press conference. Senior adviser Steve Bannon has called the media the “opposition,” and Sean Spicer opened up his tenure with a barrage of falsehoods aimed at the White House press corps.
So, it’s hard to blame anyone who sees the existence of journalists under threat, especially ones already having a tough go of it in high schools and universities. Where can reporters-in-training find hope in what Washington Post columnist Margaret Sullivan called a “hellscape of lies and distorted reality?”
Neil Gorsuch, the president’s Supreme Court nominee, might be your friend in a high place.
While the 49-year-old Gorsuch doesn’t have the largest body of work to draw from, he has given opinions on content creators’ side multiple times in libel cases. A report from the Reporters Committee for Freedom of the Press characterized his judgeship as a consistent force for application of the First Amendment.
As a student at Columbia in New York, Gorsuch found himself a conservative in a deeply liberal urban campus. He remained active in student life on campus, running for student government, co-founding the The Federalist satirical newspaper and writing columns for the Columbia Daily Spectator.
The Spectator recently published a rundown of his experiences at Columbia, helpfully documented in the newspaper’s archives. One notable incident reported: Gorsuch threatened to sue a group of students who had put up a poster calling for a boycott of The Federalist for libel, saying the poster made an untrue allegation that The Fed was funded by The Heritage Foundation, and also that the poster’s creators hadn’t put their names on it, breaking university rules.
The judge’s most prominent experience with a student press law case comes in Mink v. Knox, a case of extreme student censorship at the University of Northern Colorado.
In 2003, Thomas Mink, then the producer of a satirical newsletter called The Howling Pig, introduced a KISS makeup-wearing character named “Junius Puke,” based on finance professor Junius Peake, to his publication.
Peake didn’t think it was very funny.
He called the police, who then searched Mink’s home and confiscated his computer in the course of an investigation into whether Mink had breached Colorado’s criminal libel statutes. That’s when Mink sued. The case made it all the way up to the 10th Circuit U.S. Court of Appeals, where Gorsuch has sat since his 2006 appointment.
Gorsuch concurred with the panel of judges that Mink’s parody didn’t constitute criminal libel. However, he noted a bit of caution, saying “reasonable minds can and do differ about the soundness of a rule that precludes private persons from recovering for reputational or emotional damage caused by parody about issues of private concern.” The case (eventually) ended with a $425k settlement between Mink and Susan Knox, the prosecutor he sued. In 2012, Colorado repealed criminal libel.
In another school-based case, Gorsuch took the extreme and unprecedented opinion that a 13-year-old student shouldn’t be arrested for burping in class.
A middle school student in Albuquerque had been making fake burps in P.E. class, as a middle schooler does. The student’s teacher decided to get on the radio and call in school police, who then arrested the teen for disrupting classroom proceedings.
The student’s parents sued the teacher, school and police officer, and the district court in New Mexico ruled the school was within its authority to arrest the student. In 2016, the case reached the 10th Circuit, based in Denver, and the appellate court confirmed the lower court’s decision.
Gorsuch was the lone dissenter.
“Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands – and in that I see the best of our profession and much to admire,” Gorsuch said in his written dissent.
The Republican Party retains a majority in the Senate, and Gorsuch has thus far proven popular with conservatives regardless of the man who nominated him. It’s safe to assume he will be confirmed to take the late Antonin Scalia’s place on the Supreme Court. There’s reason to be hopeful that he’ll stand up for student press freedoms if the issue comes up.