Judge Ketanji Brown Jackson’s Supreme Court confirmation hearings, opinions offer insight into views on First Amendment, FOIA

Judge Ketanji Brown Jackson sat for four days of questioning before the Senate Judiciary Committee for her Supreme Court confirmation hearings last week, fielding inquiries on her judicial record and general legal philosophy. In her final day of hearings, Judge Jackson addressed the First Amendment and the freedom of the press that she stated “undergirds our democracy.”

During the hearings, Sen. Jon Ossoff (D-Ga.) took a moment to recognize the members of the news media in the room, highlighting the “vital role of press freedom in ensuring the free exchange of ideas [and] access to truth and debate” when he asked the judge to describe her approach to press freedom. Judge Jackson discussed different First Amendment cases including Brandenburg v. Ohio and New York Times v. Sullivan, landmark rulings on the boundaries of unprotected “incitement” to unlawful activity and the “actual malice” standard of liability for public figure defamation actions. And she characterized this area of the law as “well-established.” (Two current justices have questioned whether Sullivan should be revisited.)

While her First Amendment opinions as a judge on the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia Circuit are relatively sparse, the Reporters Committee reviewed her cases touching on freedom of speech, including the prosecution of former Senate aide James Wolfe and an action for damages stemming from a man’s arrest in a public park for using profanity.

In 2019, Judge Jackson presided over the former case, United States v. Wolfe, where the director of security for the U.S. Senate Select Committee on Intelligence was indicted on three charges of making false statements about his contacts with reporters to the FBI during an investigation into his unlawful disclosure of information.

In sentencing Wolfe on his one-count guilty plea, Judge Jackson denied considering his connections with reporters and rejected the government’s request for a stricter sentence outside of the sentencing guidelines. Judge Jackson found that while such contact was “certainly potentially harmful and entirely inappropriate,” “maintaining relationships with reporters is not a crime,” and that “the risks associated with [Wolfe’s reporter contacts] should not drive the sentence.”

In the profanity case, Patterson v. United States, Judge Jackson denied the government’s motion to dismiss an individual’s claims alleging First and Fourth Amendment violations by U.S. Park Police officers who arrested him for cursing in a public park and seeking damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

Following a long line of D.C. Circuit precedent, Judge Jackson concluded that First Amendment retaliatory arrest claims are identifiable under Bivens, found that the laws governing free speech are clearly established, and that no reasonable officer could have believed that the man’s use of profanity in the park was disorderly conduct.

By far the biggest portion of Judge Jackson’s relevant case record on press freedom issues concerns Freedom of Information Act litigation, with over 40 cases of note included in the Reporter Committee’s review.

On numerous occasions, Judge Jackson required government agencies to conduct additional records searches after they moved for summary judgment and criticized their narrow interpretation of requests and failure to justify their limited efforts. However, while Judge Jackson often found the government did not provide sufficient information in cases invoking FOIA exemptions, she rarely required the release of records as a result of this deficiency, and often gave the government additional opportunities to support its claims.

We’ll be watching the Senate Judiciary Committee’s expected vote this week closely.

Like what you’ve read? Sign up to get the full This Week in Technology + Press Freedom newsletter delivered straight to your inbox!

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.