View Of President Biden's Potential Supreme Court Nominees Through A Media Law Lens

• Published date: 24 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Trials & Appeals & Compensation, Media & Entertainment Law
• Law Firm: Haynes and Boone
• Author: Mr Reid Pillifant

President Biden's first nominee to the Supreme Court could be a boon to the media law bar. Two of the leading contenders ' D.C. Circuit Court of Appeals Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger ' worked as reporters before law school, and each has written opinions that promote government transparency and uphold key First Amendment protections. A third contender, U.S. District Judge J. Michelle Childs, has a more limited record on First Amendment issues.

Below is a look at some key media-related rulings from each possible nominee, with the caveat that their respective judicial philosophies on the First Amendment ' and more broadly - remain something of a mystery.

Judge Ketanji Brown Jackson, D.C. Circuit Court of Appeals

Judge Jackson, 51, recently joined the D.C. Court of Appeals in June 2021, after seven years as a judge on the D.C. district court. Before taking the bench, she worked in both private practice and government service. Prior to entering Harvard Law School, Judge Jackson (then Ketanji Brown) worked for a year as a staff reporter and researcher at Time magazine in New York City. Jackson did not author any by-lined articles while at Time, but her writing on the bench has drawn particular praise, and she has a reputation for being "detailed and thorough, sometimes to a fault," according to the New York Times.

On more than one occasion when serving as a District Judge, Jackson has sided with First Amendment advocates in cases related to public transparency. In Campaign for Accountability v. United States Dep't of Justice, 486 F. Supp. 3d 424 (D.D.C. 2020), Judge Jackson held that the "seldom-litigated reading-room provision" of the Freedom of Information Act required disclosure of a broad swath of opinions by the White House Office of Legal Counsel. Jackson found that these records were likely "final opinions" under FOIA, and therefore had to be proactively disclosed under the reading-room rule. Her opinion, which covered nearly one-quarter of all OLC opinions sent to outside agencies, was hailed by the Knight Institute as a "groundbreaking decision" for transparency.

In another FOIA case, Jackson held that a transportation-safety blogger employed by a for-profit company qualified as a "a representative of the news media" under FOIA's fee-waiver provision. Liberman v. U.S. Dep't of Transp., 227 F. Supp. 3d 1, 13 (D.D.C. 2016).

Judge Jackson has also taken an expansive view of First Amendment free-speech...