A unusual remark, uttered by a judge on the nation’s second most powerful court during a Tuesday hearing, warns of a subtle looming threat to the freedom of the press. The remark was uttered by Judge Thomas Griffith, a George W. Bush appointee to the United States Court of Appeals for the District of Columbia Circuit. And it reveals how a newly ascendant Supreme Court doctrine could have a chilling effect on journalists and other commentators who write about policy.
To explain, on Tuesday, the D.C. Circuit heard a marathon six-hours of oral arguments in West Virginia v. United States Environmental Protection Agency, a challenge to an effort by the Environmental Protection Agency to fight climate change. A central issue in the case is who gets the benefit of the doubt if the provisions of federal law authorizing EPA to combat pollution are ambiguous and do not provide a clear answer regarding whether the agency acted within the law.
EPA cites the Supreme Court’s longstanding Chevron doctrine, which provides that such uncertainties should be resolved in the agency’s favor. Opponents of EPA’s plan cite another line of cases which suggest that, in particularly high-stakes cases, ambiguous laws must be read in the manner that is least favorable to the agency’s position.
The opponents’ best weapon is a line the late Justice Antonin Scalia penned in Utility Air Regulatory Group v. EPA: “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” The coal industry and its allies claim that West Virginia is such a case (and, if Tuesday’s argument is any indication, the conservatives on the D.C. Circuit largely agree with them). EPA, meanwhile, claims that West Virginia is not such a case (and, if Tuesday’s argument is any indication, the liberals on the D.C. Circuit largely agree with EPA).
Which brings us to Judge Griffith’s comment.
Shortly after the Justice Department’s attorney stood up to argue EPA’s position on Tuesday, several of the D.C. Circuit’s most conservative judges revealed their incredulity at the very idea that West Virginia is not a case of “vast ‘economic and political significance” justifying a heavy thumb on the scale against EPA. Griffith offered one of the most creative justifications for this conclusion. A segment on the case “was on NPR this morning. It’s big news!”
Griffith, in other words, appears to be claiming that the fact that a particular regulation receives a certain amount of media attention may bring that regulation under the rule Scalia announced in Utility Air. An agency’s actions may be entirely legal under the Chevron regime. Yet if enough journalists report on that action, it may become a matter of “vast . . . political significance,” and that will render a once-legal regulation illegal.
Such a rule, however, has profound implications for how journalists themselves approach such issues. Take the anti-carbon pollution plan at issue in West Virginia. Journalists, opinion columnists, and other writers who agree with the coal companies’ opposition to EPA have a powerful incentive, under Judge Griffith’s standard, to give extra coverage to this case. Their mere decision to cover it, under Griffith’s NPR standard, makes it more likely that courts will hand down the result such writers prefer.
Griffith’s standard . . . is very much at odds with the First Amendment’s free speech guarantees. It effectively punishes speakers who advocate for one viewpoint, while rewarding speakers who advocate for the opposing viewpoint.
Similarly, Griffith’s standard would have a chilling effect on writers who support the EPA’s plans. These writers may want to cover the West Virginia case, whether out of a desire to inform the public, an urge to advocate their position, or both. Yet, should they choose to engage in such speech, they make it more likely that courts will hand down a result they oppose. Their very decision to defend the legality of EPA’s actions could change the law to make once-legal programs illegal.
Griffith’s standard, in other words, is very much at odds with the First Amendment’s free speech guarantees. It effectively punishes speakers who advocate for one viewpoint, while rewarding speakers who advocate for the opposing viewpoint. That’s not something the Constitution allows.
It is a bit unfair, moreover, to lay this unconstitutional result entirely at Griffith’s feet. The real villain here is the Supreme Court and decisions like Utility Air, not Judge Griffith.
The grave First Amendment questions raised by Griffith’s NPR standard are an unavoidable consequence of any legal rule which permits the legality of a particular government action to hinge upon its “political significance.” Something is politically significant if a sufficiently large number of political actors — politicians, commentators, interest groups, and ordinary voters — make it political significant through their advocacy. A particular issue’s political significance is a direct consequence of many Americans engaging in First Amendment-protected activity regarding that issue.
When the Supreme Court announces that a regulation becomes harder to justify legally as its political significance grows, it isn’t just chilling speech by many writers and journalists. It risks skewing our entire political system by encouraging an entire array of lobbyists, advocates, elected officials, and other political actors to quiet their defense of a particular policy, lest that very defense make the policy illegal.
That, again, is not something the Constitution allows.