This column expresses the views of Tony Mauro, special correspondent for the Freedom Forum.
Judge Amy Coney Barrett has a slim judicial record on First Amendment issues.
Barrett was asked on Oct. 14 by Sen. Ben Sasse (R-Neb.) to name the five freedoms embodied in the First Amendment during her Supreme Court confirmation hearing, but could not recall “petition.” That was not the only time a senator asked for her views about issues related to the First Amendment.
Sen. Amy Klobuchar (D-Minn.) also asked Barrett whether the 1964 ruling that protects a free press from much libel litigation — New York Times Co. v. Sullivan — should be overturned and whether reporters should be shielded from having to reveal their sources.
“We need Supreme Court justices who understand the importance of protecting the right of journalists,” said Klobuchar, the daughter of a Minnesota journalist.
Barrett sidestepped Klobuchar’s questions, as she did with many others during her lengthy confirmation hearings.
Those two interactions with Barrett did not shed much light on her knowledge or enthusiasm about the First Amendment. Apart from her numerous controversial speeches and articles as a law professor, the only other source of that information may come from the 79 opinions she wrote and decisions she joined during her three years as a judge on the U.S. Court of Appeals for the Seventh Circuit.
But even there, the information is sparse. The Reporters Committee for Freedom of the Press, which has researched the First Amendment views of Supreme Court nominees for decades, found slim pickings. “That record is relatively light,” the committee’s analysis of Barrett’s opinions stated. “Judge Barrett has joined very few published opinions addressing First Amendment issues and has written fewer.”
As for Barrett’s Seventh Circuit decisions touching on the First Amendment’s religion clauses, a Washington Post commentary by two law professors concluded that “in her short time on the bench, Barrett has not written extensively on religious freedom.”
Yet if she is confirmed — and that appears to be certain — she may face an important religious freedom case almost immediately. On Nov. 4, the Supreme Court will hear arguments in Fulton v. City of Philadelphia, a dispute over Philadelphia’s decision to exclude Catholic Social Services from the city’s foster care system because the Catholic agency would not allow same-sex couples to become foster parents. The agency views this is as a form of religious discrimination.
Here are four key First Amendment-related Seventh Circuit decisions that Barrett wrote or joined:
Price v. City of Chicago: A group of “sidewalk counselors” who try to persuade women from seeking abortions at clinics in Chicago challenged the city’s ordinance that created a zone around clinics where no counselors can approach someone within 8 feet. The plaintiffs assert that the ordinance is a restriction of free speech that violates the First Amendment. A three-judge panel including Barrett begrudgingly ruled that the buffer zone should be upheld, because of the Supreme Court’s 2000 decision in Hill v. Colorado, which upheld a very similar “bubble zone.” The panel asserted that in the years since Hill v. Colorado, the Supreme Court has weakened the ruling considerably, especially in light of Reed v. Town of Gilbert, a 2015 decision. According to that ruling, restrictions on speech that are applied differently, depending on the content of the speech, must be subjected to “strict scrutiny” by courts — a high standard that often results in the restrictions being struck down. In the Chicago ruling, the panel stated, “While the Supreme Court has deeply unsettled Hill, it has not overruled the decision. So, it remains binding on us.”
Lett v. City of Chicago: In a case that involved the perennial controversies over the free speech rights of government employees, Barrett ruled against a Chicago police investigator who claimed he was disciplined because he refused his supervisor’s order to alter a police misconduct investigation. Kelvin Lett, the investigator, claimed his refusal was a form of citizen speech protected by the First Amendment. But in January 2020, Barrett ruled that “because Lett spoke pursuant to his official duties and not as a private citizen when he refused to alter the report, the First Amendment does not apply.”
Illinois Republican Party v. J.B. Pritzker, governor of Illinois: In June 2020, during the pandemic, the Illinois governor imposed stay-at-home directives and limitations on public gatherings. But in the interest of the free exercise of religion, the governor exempted houses of worship, allowing them to have larger gatherings and other activities. Illinois Republicans sued the governor, asserting that the special treatment for religious groups violated their freedom of speech and urging the governor to loosen restrictions for all groups, not only houses of worship. Barrett joined an appeals panel that ruled against the Republican party and approved of preferential treatment for religion.
Grussgott v. Milwaukee Jewish Day School, Inc.: Hebrew teacher Miriam Grussgott sued the day school where she worked, citing the Americans With Disabilities Act. In 2013, she underwent treatment for a brain tumor. She later suffered memory and other cognitive issues and was fired. The school asserted that because Grussgott played a religious role in the school, the First Amendment prohibits her lawsuit under the so-called “ministerial exception” that keeps employment discrimination agencies from interfering with the hiring and firing of religious employees. The exception was created by the Supreme Court in a 2012 ruling, Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission. The Seventh Circuit panel, including Barrett, ruled that Grussgott was a ministerial employee, even though she did not fit some of the Supreme Court’s factors for determining that role.
Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media, and a special correspondent for the Freedom Forum.