Judge Gorsuch Shows Sensitivity to First Amendment Issues

President Donald Trump’s U.S. Supreme Court nominee – Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals – shows sensitivity to First Amendment concerns in his opinions. From his review, free-speech expert Ronald K.L. Collins writes that Gorsuch “has long and informed commitment to the First Amendment.”

Three opinions stand out in showing the nominee’s careful consideration of First Amendment or First Amendment-related issues.

Yellowbear v. Lampert (10th Cir. 2014)

In this decision, Judge Gorsuch addressed whether prison officials violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when they denied an inmate access to a sweat lodge.

Andrew Yellowbear, an inmate serving a life sentence for murdering his daughter, sued prison officials after they denied him access to the sweat lodge. Yellowbear, as a member of the Northern Arapaho Tribe, wanted to use the lodge for religious purification. Prison officials denied his request, claiming it would be unduly burdensome to take Yellowbear to the lodge because he was housed in a special protection unit.

Yellowbear sued under RLUIPA, which requires prison officials to have a compelling reason before substantially burdening a person’s religious free exercise of their religion.

Prison officials argued it would be too difficult for them to move Yellowbear, who was in special protective custody because of threats from other inmates, to the lodge, which was located on the main prison yard.

In his opinion, Judge Gorsuch wrote that “the prison does not even attempt to quantify the costs it faces, let alone try to explain how these costs impinge on prison budges or administration.” Gorsuch acknowledged that courts should show some deference to prison officials, but explained that this deference “does not extend so far that prison officials may declare a compelling governmental interest by fiat.”

Yellowbear pointed out that the prison routinely conducts prison-wide lock-downs for secular reasons and questioned why the prison could not conduct a brief lock-down to allow him to attend the sweat lodge. Gorsuch noted this evidence and said it “dangles out there unanswered, inviting a reasonable fact-finder to infer that the prison’s desire to avoid lock downs isn’t really as compelling as it insists” and could show the prison’s “animus or at least indifference to his religious exercise.”

Finally, the government argued that if it granted a religious exemption to Yellowbear, it would have to grant exemptions to many other inmates. Gorsuch responded to this argument, noting that the prison “gives us too little” and doesn’t provide any evidence of other inmate requests. He cited the Supreme Court’s characterization of the prison’s argument as “the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.”

Judge Gorsuch concluded that a reasonable fact-finder could find that prison officials violated the inmate’s religious liberty rights under RLUIPA.

Bustos v. A&E Television Networks (2011)

In this decision, the 10th Circuit had to consider whether an inmate accused of being a member of the Aryan Brotherhood on the television show, Gangland: Aryan Brotherhood, advanced a viable defamation claim.

Jerry Lee Bustos was not a member of the Aryan Brotherhood, but affiliated with the white supremacist gang and engaged in drug trafficking with members of the prison gang. Still, Bustos contended that the producers of the show defamed him by labeling him as a member of the group.

Gorsuch’s opening paragraph memorably asked and answered Bustos’ claim:

“Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.”

Judge Gorsuch relied on the substantial truth doctrine to hold that the media defendant was immune from liability. The substantial truth doctrine holds that as long as the gist of the statement is true, the statement is not false within the meaning of defamation law.

Gorsuch wrote that “while Mr. Bustos isn’t formally a member of the Brotherhood, he surely did affiliate with the organization.” Gorsuch concluded that the statement about Bustos being a member of the gang “is itself substantially true as a matter of law.”

Casey v. West Las Vegas Independent School District (2007)

In this decision, Judge Gorsuch addressed the rights of a public employee who blew the whistle on alleged corruption. Barbara Perea Casey served as superintendent of the West Las Vegas (New Mexico) Independent School District. During her employment, she uncovered problems with the District’s Head Start program, a federally funded program that provides meals and other services to children from lower-income families.

Casey reported to school district officials that there were problems. After being told not to worry about it, Casey reported it to federal authorities. Casey also told school district officials that they were violated New Mexico’s Open Meetings Act by making personnel and other decisions without providing the public with proper notice of meetings. She later filed a complaint with the New Mexico’s Attorney General’s office.

School Board officials demoted Casey to assistant superintendent and then terminated her. Casey sued, alleging that she was terminated in retaliation for blowing the whistle on violations.
When the case reached the 10th Circuit, the U.S. Supreme Court had recently changed public employment law with its decision Garcetti v. Ceballos (2006). In Garcetti, the Court created a categorical rule that when public employees make statements pursuant to their official job duties, they have no First Amendment protection. This changed the law quite dramatically, as previously courts determined whether an employee spoke on a matter of public importance (or concern) and, if so, balanced the employee’s right to free speech against the employer’s efficiency interests.

In his opinion, Gorsuch recognized that that Garcetti “profoundly alters” public employee First Amendment lawsuits. He also reiterated that public employee speech revealing “illicit or improper activities of a government entity or its agents is obviously a matter of great public import.”

Gorsuch ruled that Casey’s statements about the Head Start program were barred by Garcetti, since it was Casey’s job to oversee the implementation of the program in the School District. However, Gorsuch ruled that Casey’s statements to the state attorney general’s office about possible violations of the Open Meetings Act “are another kettle of fish.”

He cogently explained that Casey’s statements to the state attorney general “fell sufficiently outside the scope of her office to survive even the force of the Supreme Court’s decision in Garcetti.”


The three opinions on prisoner’s religious liberty rights, defamation, and public employment retaliation claims reveal a justice acutely aware of relevant doctrine and precedent. He also possesses the ability to write clearly and cleverly on First Amendment issues.

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