Highlights of First Amendment-Related Exchanges Between Judge Barrett and Senate Judiciary Committee Members

As a service to the public, the Institute for Free Speech analyzed the First Amendment record of the Supreme Court’s newest Justice, Amy Coney Barrett, during her tenure on the Seventh Circuit Court of Appeals. Though Judge Barrett’s record in this area during her time on the Seventh Circuit was limited, we did report on four opinions she joined or authored implicating the First Amendment’s speech, press, assembly, and petition protections. Two rulings were generally supportive of free speech rights for municipal employees, another decision vindicated the speech rights of a federal prisoner, and the final opinion involved a recent unsuccessful challenge to pandemic-imposed restrictions on the exercise of First Amendment freedoms in Illinois.

To supplement these resources, the Institute reviewed transcripts of Judge Barrett’s answers to questions from members of the U.S. Senate Judiciary Committee during her confirmation hearing to be an Associate Justice of the Supreme Court of the United States. In particular, we searched for keywords related to free speech and the First Amendment. While we didn’t search for keywords relating to the freedom of religion, we did include anything on that topic that was related to the First Amendment more broadly or to the freedoms of speech, press, assembly, and petition specifically.

The following excerpts reflect First Amendment-related testimony from day two (October 13, 2020) and day three (October 14, 2020) of Judge Barrett’s confirmation hearing. The excerpts have been condensed from the original transcripts provided by Rev, and light edits have been made only to fix typos and for formatting purposes. Section headers have been added to clearly identify the topics discussed in the exchange. Readers can refer to the hyperlinked timestamps below to see video of the reprinted exchanges between members of the Senate Judiciary Committee and Judge Barrett.

Day Two of Judge Barrett’s Confirmation Hearing

On Citizens United and Judicial Review…

Chairman Lindsey Graham (R-SC) [18:10]: And I would dare say that there are personal views on the Supreme Court, and nobody questions whether our liberal friends can set aside their beliefs. There’s no reason to question yours, in my view. So the bottom line here is that there’s a process. You fill in the blanks, whether it’s about guns and Heller, abortion rights. Let’s go to Citizens United. To my good friend, Senator Whitehouse, me and you are going to come closer and closer about regulating money. Because I don’t know what’s going on out there, but I can tell you there’s a lot of money being raised in this campaign. I’d like to know where the hell some of it’s coming from. But that’s not your problem [Judge Barrett]. Citizens United says what?

Judge Barrett [18:57]: Citizens United extends the protection of the First Amendment to corporations who are engaged in political speech.

Chairman Graham [19:03]: So, if Congress wanted to revisit that, and somebody challenged it under Citizens United, that Congress went too far, what would you do? How would the process work?

Judge Barrett [19:14]: Well, it’d be the same process I’ve been describing. First, somebody would have to challenge that law in a case. Somebody, presumably, who wanted to spend the money on a political campaign. It would wind its way up, and judges would decide it after briefs, and oral argument, and consultation with colleagues, and the process of opinion writing.

On the Free Exercise Clause of the First Amendment…

Senator Josh Hawley (R-MO) [16:01]: And in fact the Free Exercise Clause and the First Amendment suggests that the exercise of religion, worship, religious belief gets special protection. It’s singled out here for protection along with, immediately after speech, press, right of the people peacefully to assemble. Religion is given a special place, which the United States Supreme Court has recognized. Let me just ask you about attempts to disfavor religious believers on the basis of faith. Is it your understanding, can a government at any level, federal government, state government, municipality, whatever. Can they treat religious believers differently? Can they single them out for disfavor versus a non-religious group? Is that permissible in our constitutional order?

Judge Barrett [16:46]: Well, Senator Hawley, that’s a complicated question because there’s a lot of doctrines surrounding that, and there aren’t bright line rules. And so that question would come up in a case with facts, and it would require the whole judicial decision-making process. So it’s not a hypothetical that I can answer.

On the Importance of the First Amendment…

Judge Barrett [03:09:35]: Well, I think all of the Bill of Rights, each and every one of them, is important to Americans because we value the Constitution, including religious liberty.

Senator Ted Cruz (R-TX) [03:09:46]: Well, how about the free speech protections of the First Amendment? Why are those important?

Judge Barrett [03:09:49]: So that minority viewpoints can’t be squashed. So that it’s not just the majority that can speak popular views. You don’t really need the First Amendment if what you’re saying is something that everybody wants to hear. You need it when people are trying to silence you.

On Identifying as an Originalist…

Senator Ben Sasse (R-NE) [04:15:13]: I think this is a useful place to explain to the American people again what originalism is and why it’s a mistake to view it as a Republican position. I think that originalism is a part of a jurisprudential debate. It’s not a part of a policy continuum between Republicans and Democrats. I think it’s something that is useful for everybody who believes that three branches of government have two that are political and one that is not. So maybe it’s useful to just kind of back up and say, when you define yourself as an originalist, what does that mean? And then, how is it going to relate to that distinction between the principles that are timeless but applications that are clearly going to change by circumstance?

Judge Barrett [04:15:53]: Right. So originalism means that you treat the Constitution as law, because it commits these texts to writing, and in interpreting that law, you interpret it in accord with the meaning that people would have understood it to have at the time that it was ratified. And the reason that you do that is because, as I said, the law stays the same until it’s lawfully changed. Otherwise, judges would be in the constitutional convention business of updating the law rather than allowing the people to take control of that. Now, in the case of the Constitution, as I said with the Fourth Amendment, many of its principles are more general. Unreasonable searches and seizures. Free speech. Those are things that have to be identified or fleshed out or applied over time. So the fact that there wasn’t the internet or computers or blogs in 1791 doesn’t mean that the First Amendment’s free speech class couldn’t apply to those things now. It enshrines a principle, and we understand the principle as it was at the time, but then it’s capable of being applied to new circumstances.

On Buffer Zones and the Right to Protest…

Senator Joni Ernst (R-IA) [02:06:43]: And I know that you consider yourself to be an originalist, as you discussed earlier with Senator Sasse. And it seems that adhering to the originalist view would naturally lead a judge to carry out her constitutional duty of impartiality when applying the law, and adhering to this philosophy as a judge takes real courage. And the courage you have displayed thus far as a federal judge prompted a coalition of groups to send me a letter supporting your nomination. Susan B. Anthony List led this coalition letter that I would like to submit to the Committee for the record. And I know this is going to make a number of members on the Committee just very squeamish because they are a pro-life organization. But with this in mind, I want to take a moment to read part of this letter.

Senator Ernst [02:07:42]: Quote, Judge Barrett has proven herself to handle disputes impartially, approaching cases as a textualist and originalist who loves the Constitution. She is a jurist who rightly leaves politics to politicians and legislating to legislators. And I’ll quote further. Quite apart from whatever policy views she may have on the matter, Judge Barrett reasons to a proper result in each case before her. As a federal appellate judge appropriately following controlling precedent, in February 2019, she joined a panel decision upholding a law creating a buffer zone around abortion facilities. This buffer or bubble zone case being referred to is Price v. City of Chicago. Judge Barrett, could you please give us an overview of the city ordinance that was challenged here and explain how precedent established by the Supreme Court’s Hill decision influenced your reasoning of the case?

Judge Barrett [02:08:54]: Yes, I was on a panel. There was a challenge to a bubble zone ordinance, which essentially means … It was …. How to describe it? It limited where abortion protesters could go to do sidewalk counseling or leafleting or the things that they identified as the activities they desired to undertake and the expression of speech outside of the abortion clinic. The Supreme Court has a case called Hill v. Colorado, and that case said that such bubble zones – especially because this one in Chicago was nearly identical, as I recall, with the one that was at stake in Hill – said that they did not violate the First Amendment. And so our panel, we’re bound by that precedent. Our panel applied that precedent. And so, as you say, that was a case involving abortion, but my duty as a judge was to follow the governing law, and that governing law in that case was Hill.

Senator Ernst [02:09:52]: Absolutely, and thank you for that clarification. And I think it was important to point that out because in that case, using precedent, it did favor that abortion clinic. Is that correct?

Judge Barrett [02:10:07]: That is correct.

Day Three of Judge Barrett’s Confirmation Hearing

More on Buffer Zones and the Right to Protest…

Senator Mike Lee (R-UT) [33:31]: I’ve got some colleagues on the other side of the aisle who seem to want to focus on statements made in your personal capacity and in your capacity as a private citizen and a member of your faith as opposed to addressing actual cases dealing with abortion. I have a hunch that this is because your record on the Seventh Circuit actually shows that you’re able to set aside your personal convictions, because that’s what you’ve done when they’ve conflicted with your duty under the rule of law. In Price v. Chicago, for example, I assume you remember that case. Is a case in which you joined a Seventh Circuit panel opinion affirming the legality of a Chicago buffer zone law, which places limits on pro-life activists as they’re demonstrating exercising their First Amendment rights outside of abortion clinics. I assume that was the case because there was binding Supreme Court precedent on the abortion buffer zone issue. Is that right? Or do you want to tell me a little bit about your reasoning in that case?

Judge Barrett [34:49]: So the panel held that the issue was squarely controlled by the Supreme Court’s decision in Hill v. Colorado.

On Janus and Precedent

Senator Sheldon Whitehouse (D-RI) [52:58]: So it gets a little weird sometimes and that’s a circumstance I’d like to bring up to you because it touches on some of the stuff that I addressed yesterday. One case, it’s not even a case. You know Janus?

Judge Barrett [53:15]: Yes.

Senator Whitehouse [53:15]: Okay. Let’s describe this as the Janus saga, because it’s more than really one case. And it’s really about a completely different case called Abood. And you’re familiar with the Abood decision?

Judge Barrett [53:26]: Yes.

Senator Whitehouse [53:27]: So the Abood decision was precedent for what, 40 years?

Judge Barrett [53:33]: I can’t remember when Abood was decided, but it was precedent before Janus.

Senator Whitehouse [53:36]: Yeah, roughly 40 years, I’ll tell you. And had repeatedly been reaffirmed.

Judge Barrett [53:42]: It was a longstanding precedent.

Senator Whitehouse [53:43]: Yep. On which there was considerable reliance.

Judge Barrett [53:48]: Let’s see. So Janus did overrule that precedent, and so Janus did go through the application of the stare decisis factors in deciding whether to overrule it, whether that…

Senator Whitehouse [53:58]: There was in fact reliance in the 40 years that it had been the law of the land, on the question of, the union question that it had resolved.

Judge Barrett [54:08]: Well, I don’t want to second guess or criticize or praise the majority in Janus’s…

Senator Whitehouse [54:15]: I’m not asking you to, I’m asking you as a matter of fact, had 20 plus states relied on it?

Judge Barrett [54:20]: Well, Senator, I think reliance and the degree of reliance on Abood is a legal question.

Senator Whitehouse [54:25]: We’ll just leave that then…

Senator Whitehouse [01:01:52]: So I have a little bit of time left, so I’m going to get onto a third … By the way, I’m not the only one who sees this as a saga, the dissent and Janus said, “Here ends the six-year campaign to undo Abood by the majority of five.” Pretty safe to say that you don’t think courts should be campaigning to reach decisions?

Judge Barrett [01:02:21]: Without commenting on Janus or what happened there, yes, I think that judges shouldn’t have campaigns.

Senator Whitehouse [01:02:29]: Or projects.

Judge Barrett [01:02:30]: I think judges should not have pet projects and they should not have campaigns. They should decide cases.

On Judicial Ethics and Funding for Groups Authoring Amicus Briefs…

Senator Whitehouse [01:03:12]: And how about with amici, if you have a case in which there is an amicus in a case that is before you, would you meet privately with the amici while their case, the case in which they’ve written a brief, is pending?

Judge Barrett [01:03:29]: You mean, meet privately? Allow the amici to have access to the judges privately, to try and make their case?

Senator Whitehouse [01:03:35]: Yes.

Judge Barrett [01:03:35]: I would not do that.

Senator Whitehouse [01:03:35]: No. And why would you not do that?

Judge Barrett [01:03:39]: That would be inappropriate.

Senator Whitehouse [01:03:40]: Yep. And, in fact, is it possible that you could not even know who was really behind the amicus if they haven’t told you?

Judge Barrett [01:03:52]: You mean how the amicus was funded?

Senator Whitehouse [01:03:56]: Correct.

Judge Barrett [01:03:57]: To my knowledge, I’m thinking through what the disclosures are in the front of briefs. I mean, to my knowledge, that information is not part of what groups disclose when they file an amicus brief.

On the Federalist Society and “Dark Money”…

Senator Cruz [01:15:18]: All right, a third point. There’s been some discussion from Democratic members raising the question of the Federalist Society, and dark money, and all sorts of mysterious connections. Now, Judge Barrett, am I right that at least for a period of time, you were a member of the Federalist Society? Is that right?

Judge Barrett [01:15:40]: While I was on the faculty as a full-time tenured professor.

Senator Cruz [01:15:45]: And you’ve spoken at some Federalist Society events, is that accurate as well?

Judge Barrett [01:15:49]: I have.

Senator Cruz [01:15:52]: In your time dealing with the Federalist Society, have they ever lobbied you to take a particular position?

Judge Barrett [01:15:58]: They have not.

Senator Cruz [01:16:00]: In your time as a judge, has the Federalist society ever filed a brief in your court urging an outcome in a particular case?

Judge Barrett [01:16:06]: It’s my understanding the Federalist Society doesn’t litigate. They have not ever filed a brief in my court.

On New York Times v. Sullivan and Defamation Law…

Senator Amy Klobuchar (D-MN) [02:20:25]: Justice Thomas has expressed skepticism with [New York Times v. Sullivan], writing in his concurrence in McGee v. Cosby, that, “If the Constitution does not require public figures to satisfy an actual malice standard in state law defamation suits, then neither should we.” Do you agree with Justice Thomas that the court should reconsider the actual malice standard because it is inconsistent with the original meaning of the Constitution?

Judge Barrett [02:20:51]: Well, Senator Klobuchar, I can’t really express a view on either [New York Times v. Sullivan] or Justice Thomas’s critique of it without violating the principle that I’ve repeatedly stated, that all nominees follow that I can’t comment on matters of litigation or grade precedents that the court has already decided.

On Protections for Journalists’ Anonymous Sources…

Senator Klobuchar [02:21:09]: I also want to ask you about how journalists have been deterred from doing their jobs under the threat of jail time. After the Supreme Court’s 1972 decision in Brandenburg v. Hayes, many federal courts of appeals have recognized what’s called the Reporter’s Privilege, which protects a reporter’s First Amendment right to protect his or her sources from disclosure in certain circumstances. The Seventh Circuit, by the way, in which you serve, has rejected a constitutional basis for Reporter’s Privilege. Under its original public meaning, does the First Amendment protect a reporter’s decision to protect a confidential source?

Judge Barrett [02:21:45]: Well, again, that would be eliciting a legal conclusion from me, which I can’t answer in a hypothetical form in the hearing. It’s also a question, as you point out, that’s closely related to ones that are being litigated.

Senator Klobuchar [02:21:57]: Okay. One last try. Do you agree that if reporters cannot protect their sources, they are less likely to be able to find confidential witnesses willing to share information, confidential informers willing to share information about issues of public importance?

Judge Barrett [02:22:11]: Well, Senator, that would both be a policy question, a matter of public policy, which I can’t express a view on. And presumably also one that might factor into the question of what the First Amendment protects. So again, that’s not something that I can give an opinion on in this context.

On the Importance of the Bill of Rights…

Senator Sasse [02:28:50]: And if we maybe broaden it from just the Ninth amendment to the Bill of Rights in general, why do we have one, and what would be different in our constitutional structure if we didn’t have the Bill of Rights?

Judge Barrett [02:29:02]: If we didn’t have a Bill of Rights, we wouldn’t have particular rights singled out for special protection. As I’m sure you know, Senator, the Bill of Rights was added in 1791 because, during the debate about the ratification of the original Constitution, many states objected to the fact that there was no Bill of Rights. The original idea, when the original Constitution, and by that, I mean beginning with Article One, moving up, was that the very structure of government protected rights. And there wasn’t thought to be a need to have a Bill of Rights because it was thought that the separation of powers and the structure of federalism would be a protection for those rights. But those who really felt like they wanted the additional protection, the Bill of Rights prevailed, and James Madison drafted them, and they were ratified in 1791.

Senator Sasse [02:29:53]: So I don’t mean to put words in your mouth. I mean to lay out a hypothesis so you can expand upon it or correct me. But is it fair to say that most governments in human history have had a default assumption of prohibition? Governments can do whatever they want, and citizens don’t have rights unless governments proactively give them rights? The default assumption is you don’t have freedom of religion in most governments across time and space. You don’t have the freedom to start a business. And the American system starts with the opposite assumption, which is that freedom is the default condition. People are created in the image of God with inalienable rights. These are pre-governmental rights, and the government has to have specifically enumerated powers. We, the Congress, have to authorize Article Two branch, the Executive Branch to go ahead and do anything. And if they don’t have those authorities, in the Executive Branch and the Administrative Agencies, they can’t do anything unless Congress gives them the freedom. And the people’s default assumption is freedom.

Senator Sasse [02:30:51]: And so our system is to flip the historic prohibition assumption, and we have a freedom assumption on people and a prohibition assumption on government. And so prior to the Bill of Rights, the structure of the Constitution was saying that we don’t need to enumerate rights because the assumption is you have a right, unless a prohibition has been created. Is that a fair way to think about it? And how would you expand upon it more eloquently since you teach this stuff?

Judge Barrett [02:31:17]: You are far more eloquent than I, Senator Sasse. I think that is an accurate description of the assumptions underlying our Constitution. That the assumption was that if Congress had limited power, it wouldn’t have the ability to infringe rights in the first place. And of course, at the time the Constitution was ratified, the states were thought to have… Because the people are closer to their state governments… Well, that’s the point of federalism, right? That citizens can have different policies in states and more influence over their state governments and their state legislatures than the federal government.

On the Five Freedoms of the First Amendment…

Senator Sasse [02:32:37]: What are the five freedoms of the First Amendment?

Judge Barrett [02:32:41]: Speech, religion, press, assembly… Speech, press, religion, assembly. I don’t know, what am I missing?

Senator Sasse [02:32:53]: Redress or protest.

Judge Barrett [02:32:54]: Okay.

Senator Sasse [02:32:56]: Why is there one amendment that has these five freedoms clustered? Why do they hang together?

Judge Barrett [02:33:04]: I don’t know what you’re getting at on that one. You mean what is the common denominator?

Senator Sasse [02:33:08]: Yeah. I mean, why… I’m getting back to the same idea that the Bill of Rights was sort of an attempt to do public catechesis. It was an attempt to say, “We already believe in limited government.” We, the founders. That’s the brilliance of the Miracle at Philadelphia, despite all the failures to live up to our ideals. But the 1787, 1788 conversation was to say, “We believe in limited government because we believe in the limitless rights of people.” And so they didn’t have a Bill of Rights, but later when they started spelling it out, it’s sort of like they got jazzed up trying to work this out for the American people. This is amazing stuff. And so I just wanted to hear you reflect a little bit on the glories of the First Amendment, even though it wasn’t needed as a part of the structure at the beginning, once they added it. Why five of them in the same amendment?

Judge Barrett [02:34:00]: I don’t know why actually as a historical matter, those were grouped. I’m sure there’s a story that I don’t know there about why those appeared in the First Amendment all together, rather than being split up in different amendments. I mean, assembly and protest and speech bear more relation to one another than necessarily free exercise. But I think, they are in the First Amendment, and I think that reflects that those were core values, that reflects that the states who ratified the Constitution, the original Constitution on the understanding that a Bill of Rights would be added, wanted protections like that to be included because they were really core to what the new Americans thought was going to be America.

On the Differences Between the First Amendment’s Free Exercise and Free Speech Protections…

Senator Hawley [03:16:40]: So I won’t ask for your view on this because these are cases, these are issues, that you very may well be called upon to weigh in on. I hope that you are. But I hope that you will give these issues consideration and the, I think, very well taken warning of Justice Holmes in Lochner. I think perhaps that insight has been lost sight of in many cases by both Republican appointees and Democratic appointees over many years on the Supreme Court in a variety of areas. Let me transition to one other area of law that’s very important. Back to the First Amendment and to the free exercise of religion. You had an interesting free exercise case recently. You were on the panel; you didn’t write the decision. This is the Pritzker case. Illinois Republican Party v. Pritzker decided on September 3 of this year. So it’s quite recent. It was just last month.

Senator Hawley [03:17:33]: This is a case in which the Governor of the state was sued because, in the words now of the opinion I’m quoting, his executive order relating to COVID lockdowns “exhibits special solicitude for the free exercise of religion.” And the case, in a roundabout way, challenged that special solicitude for churches and religious organizations. You joined the opinion in full. You didn’t dissent. Can you say why you joined the opinion and why you think that the content here is right, why the holding is correct?

Judge Barrett [03:18:07]: Sure. So in that case, the Illinois Republican Party said that, because the executive order in Illinois had given an exception for the free exercise of religion, for example, so that people could gather at churches or synagogues and mosques, that, that same special protection had to extend to the Illinois Republican Party – and, indeed, by logical extension to everyone – so that the whole order would fall because religion couldn’t be singled out for special treatment and that, that right to free speech, free assembly, et cetera, that it was under First Amendment doctrine a content-based distinction that could not survive. And what that opinion said about that is that it was permissible for the Governor of Illinois to carve out an exception for free exercise and that doing so didn’t compel the government to extend the same protection to everyone. As Judge Wood said very well in that opinion, trying to accommodate a right explicitly mentioned in the Constitution and the First Amendment did not put the COVID order in jeopardy.

Senator Hawley [03:19:22]: And the opinion is very firm on this point. You quote from the Hosanna-Tabor case, which you and I discussed a little bit yesterday, unanimous case from the Supreme Court. This is the opinion quoting from that case. “The First Amendment itself gives special solicitude to the rights of religious organizations.” That’s the Hosanna-Tabor case. This opinion that you joined goes on to say, “There can be no doubt that the First Amendment singles out the free exercise of religion for special treatment. Rather than being a mechanism for expressing views as the speech, press, assembly and petition guarantees are, the free exercise clause is content-based,” as you just said. “The mixture of speech and music and ritual and readings and dress that contribute to the exercise of religions the world over is greater than the sum of its parts.”

Senator Hawley [03:20:06]: In other words, what I understand, correct me if I’m wrong, what I understand the panel to be saying is, the free exercise of religion isn’t reducible to the free exercise of speech. It isn’t reducible to the free exercise of assembly. Those are important rights. Those are also protected by the First Amendment. But the free exercise of religion protects something different and more. It protects the rights of religious people and religious organizations of all backgrounds the world over. But, of course, in this country, for Americans, it protects them and gives them special solicitude under the First Amendment. Have I got that correct?

Judge Barrett [03:20:38]: Yes. To be clear, I can’t take credit for the eloquent language. That was Judge Wood’s language on the panel opinion that I did join. Yes, but the point that the panel opinion makes is that the free exercise of religion is singled out for its own protection in the First Amendment rather than being a subset of speech. And the position that the Illinois Republican Party took in that case would have been more putting everything under the speech umbrella.

Senator Hawley [03:21:02]: And why do you think that is an important point of constitutional law? I’m not asking you to comment on cases, but if you could put on your constitutional scholar hat, why is it significant that the First Amendment gives special solicitude, as this decision says, as the Supreme Court has repeatedly said, special solicitude to the rights of religious associations, religious believers, religious worship, and exercise?

Judge Barrett [03:21:28]: I think that case itself, the Illinois Republican case, shows why this distinction can matter. Because, as our panel held in that case, the outcome may have been different if we had been treating it solely as a free speech question, because the court has said that content-based distinctions under the First Amendment get strict scrutiny, and it can be hard to satisfy. So the case might’ve come up differently had it only been speech at issue. The case came out as it did because free exercise was also at issue.

On Pandemic-Inspired Restrictions on First Amendment Rights…

Senator Thom Tillis (R-NC) [46:01]: Well, I think in [Heller], it did, but I would leave it to somebody far more qualified than you to take it forward. And I suspect it will if the sheriff re-imposed the same imposition on lawful gun owners. I thought about this when Senator Hawley was asking a similar question. I’ve finished my 68th telephone town hall since the first case was reported in North Carolina. And about a month into it, everybody understood that we had to shut things down, try to understand how COVID was affecting us. But then about four to six weeks later, we saw peaceful protests, some of which were hijacked. And we’ve seen them widely reported, allowed by certain liberal governors and other elected officials and towns and counties. But at the same time, they prevented churches from being able to worship. You enumerated the protections, the specific protections under the First Amendment, and I think religion and protest are two of them. Do you feel like any governmental entity has a right on the one hand to allow these protests to occur and on the other hand, prevent worship in temples synagogues, mosques, or any place of worship?

Judge Barrett [47:18]: Well, Senator those kinds of cases are being litigated all around the country right now. Some have gone up to the Supreme Court on a couple of different orders. So, those aren’t things that I would be able to comment on.

Senator Tillis [47:30]: Are you able to opine at all on how you would go about evaluating the arguments?

Judge Barrett [47:35]: Sure. So, whenever you have that kind of a restriction, like as we are in a pandemic, the Supreme Court’s general position is that the government has a compelling interest in responding to a health crisis of this sort. So, you look at the case law describing the extent of the state’s authority to address a public health crisis. It’s come up before in, in case involving vaccination. Then, you also, and this was clear in my interchange with Senator Hawley, you also look at the other amendments and other rights at play. So, in the case that I had, it involved the First Amendment, looking at the speech and free exercise clauses of that amendment. So, those come into play as well.

On State Action Requirements…

Senator John Kennedy (R-LA) [02:48:24]: Okay. The federal Constitution has a state action requirement. Am I right?

Judge Barrett [02:48:31]: It does.

Senator Kennedy [02:48:32]: Okay. Would a state be free to not have a state action requirement?

Judge Barrett [02:48:39]: I am not aware of any principle that would prevent a state from a statute or a constitutional provision. I mean, states can be the master of their own constitutions, right?

Senator Kennedy [02:48:51]: And what do I mean when I’m talking about state actions?

Judge Barrett [02:48:53]: State action requirement, so the only constitutional provision, I think, in our Constitution that applies directly to individuals is the Thirteenth Amendment, which prohibits slavery. The Fourteenth Amendment, which is the context in which the state action requirement has been explored in Supreme Court case law in the civil rights cases, means that the Equal Protection guarantee or even all the Bill of Rights that are incorporated through it, like the First Amendment, only apply to the government.

Judge Barrett [02:49:27]: So, when I’m teaching this to my con law students, what I tell them is that I can tell my kids at the dinner table, the First Amendment doesn’t apply here because they’ll often say, “Hey, what about my freedom of speech?” And I’ll say, “You don’t have any, because in my house, it is the law. Obey me.” So, but public universities are different than private universities in that regard because the First Amendment applies to government run institutions, but not to private universities.

Senator Kennedy [02:49:49]: Yeah. I don’t know what the law is right now, but I think there was a case, maybe it’s been overruled, but the California Supreme Court, based on its constitutional history, has ruled that the First Amendment in the…

Senator Kennedy [02:50:03]: The First Amendment in the California Constitution or the First Amendment [inaudible] has no state action requirement. It doesn’t just protect you against government, it protects you against everybody. It’s just…

Judge Barrett [02:50:15]: I didn’t know that.

IFS Staff

IFS Staff


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