Judge Garland, the First Amendment, and Friedrichs

On Wednesday, March 16th, President Obama nominated Judge Garland of the D.C. Court of Appeals to replace Justice Scalia on the Supreme Court.

Any nominee’s record on the First Amendment would always be of crucial concern. However, with Friedrichs v. CTA and multiple other important First Amendment cases pending before the court, Judge Garland’s record deserves extra scrutiny.

Hailed as a moderate, Judge Garland has authored few First Amendment cases himself. Those he has authored typically do not involve particularly controversial issues and therefore leave a great many questions about how Garland would handle the controversial First Amendment cases brought to the Supreme Court.

First Amendment Cases Authored by Judge Garland

Judge Garland has only authored three opinions on the First Amendment in his time as an appellate judge.

In Initiative & Referendum Inst. V. USPS, the U.S. Postal Service issued a regulation that banned anyone from collecting petitions on post office property. Judge Garland ruled that this regulation violated the First Amendment because it was not narrowly tailored nor did it preserve alternative channels of communication. As Judge Garland explained, “None of the government interests previously identified – against disturbing postal patrons, impeding their access, or invading their privacy – reasonably justifies an across the board prohibition of pure solicitation on postal sidewalks.”

That’s one win for the First Amendment under Judge Garland.

In National Association of Manufacturers v. Taylor, however, Garland upheld a Government regulation against a charge that it violated the First Amendment. At Issue was the Honest Leadership and Open Government Act of 2007, which expanded the definition of “lobbyists” who would be required to disclose the information of their donors. The National Association of Manufacturers argued that the disclosure requirements infringed on their First Amendment rights. Judge Garland disagreed. While recognizing that disclosure requirements can burden “substantial First Amendment interests,” he held that no First Amendment rights were violated here because of the compelling government interest in transparency and because the statute did “not prohibit lobbyists from saying anything. It only required disclosure.”

One positive from National Association of Manufacturers v. Taylor, however, is that Judge Garland recognized an ambiguity exists as to what level of scrutiny should be applied to disclosure requirements. In light of that, he applied the most stringent standard: strict scrutiny.

In his only other First Amendment opinion, Judge Garland wrote a dissent in Lee v. DOJ. The majority opinion ordered that reporters must divulge their sources in the face of a Privacy Act lawsuit. Judge Garland feared that this would have a chilling effect on free speech and inhibit the press’s ability to effectively keep tabs on the government. In by far his most impassioned opinion on the First Amendment, Judge Garland wrote,

“The significance of the court’s decision in this case should not be underestimated. In many cases involving leaks of government information concerning identifiable individuals, those individuals will have viable claims under the Privacy Act. Moreover, the Act is not limited to private individuals. It is equally available to public officials-and to former public officials-whether they have been accused of corruption or merely of incompetence. It would, for example, be available to former officials seeking to learn who leaked the information that forced them to resign in their administration’s own Watergate.”

First Amendment Cases Joined by Judge Garland

While these are the only three First Amendment cases that Judge Garland has authored himself, we can also gain a glimpse into his views by looking at the cases where he has joined either the majority or the dissent.

A number of the rulings are positive victories for First Amendment rights.

In Thompson v. District of Columbia, Judge Garland joined an opinion that held that public employees, by virtue of becoming public employees, do not relinquish their “First Amendment right to comment on matters of public interest.”

In Speechnow.org v. FEC, a unanimous panel, including Judge Garland, voted to uphold the Citizens United ruling that found contribution limits unconstitutional.

And in Levitan v. Ashcroft, Judge Garland joined a panel that found a prison violated an inmates First Amendment rights by refusing to allow him access to communion wine.

Judge Garland and Agency Fees

Another area of the law relevant to the Friedrichs case is labor law. While serving on the D.C. Circuit, Judge Garland authored twenty-two opinions. While none of those cases dealt directly with the issue of compelled union dues, at least one case did require Judge Garland to explain the existing law as a matter of reference. In Pacific Coast v. NRLB, observed that “The Supreme Court, this court, and the Board have all held that, even with a union security agreement in place, an employee cannot be fired simply for refusing to be a “member” of a union. The only obligation that can be imposed is that the employee pay core financial obligations for collective bargaining, grievance adjustment, and contract administration — not full union dues.”

In other words, Judge Garland considered it established law that unions may compel non-members to pay agency fees.

In another opinion joined by Judge Garland, but not authored by him, the D.C. Circuit held while non-members may opt out of paying the full amount of dues, it is up to the union to calculate how much of an agency fee they can compel non-members to pay. The Court justified their deference to the union procedures by explaining that “The Union’s system allows nonmembers who have some reason to question the level of their local’s non-chargeable activity to easily raise a challenge, thus forcing the Union to justify its fee allocation. And there is absolutely no risk that the funds collected from any such individuals will be used for non-chargeable activities.”

Judge Garland’s Opinions as an Appellate Judge

However, many of these opinions, both the good and the bad, may be explained by understanding Judge Garland’s obligation as a circuit judge to apply the precedent of the Supreme Court. The Court of Appeals for the D.C. Circuit was obligated to uphold Citizens United, but that does not necessarily mean all the judges on the panel think Citizens United is good law or would not vote to overturn it if it were in their power to do so.

As University of Chicago Professor Eric Posner explains, “one cannot predict much from the votes of an appellate judge. Circuit judges, unlike Supreme Court justices, do not make law, and they almost always vote the same as their colleagues. Everyone scratched their heads when Sonia Sotomayor, John Roberts, and Samuel Alito were nominated as well. Their opinions revealed almost nothing about their politics.”

John McGinnis, the Dix Professor in Constitutional Law at Northwestern, echoes this concern about the ability to discern a good appellate judge’s views. As he points out, Justice Ruther Bader Ginsburg was also once hailed as a “centrist” judge from the D.C. Circuit. He continues,

“The centrism of a lower court judge is likely an illusion. He is bound by Supreme Court precedent and thus has limited ability to change the status quo. Thus, he tends to be centrist simply by virtue of his position. To be sure, there are some lawless circuit judges, who do not make a good faith effort to follow Supreme Court precedent, but they are relatively few. And none of these could be serious candidates for the Supreme Court, where a record of reversal and obvious disobedience would be seized on by the opposition.”

Taken together, this leaves us doubtful we can accurately discern Judge Garland’s view on the First Amendment. While he has authored some favorable opinions on the First Amendment, none of them are particularly controversial or they fall squarely within Supreme Court precedent that Garland, as a circuit judge, was bound to uphold.