...in his excellent newsletter Original Jurisdiction here. You all should subscribe. It's worth it. Here's the section on Judge Newsom:
Judge of the Week: Judge Kevin Newsom.
I’m a fan of the First Amendment, and I’m a fan of Judge Kevin Newsom (11th
Cir.). So I was a happy camper this week, with Judge Newsom writing two
noteworthy concurrences in First Amendment cases (and joining an opinion by
Judge Britt Grant
in a third case that vindicated free-speech rights).
First, Judge Newsom joined the majority opinion of Judge Jill Pryor in Warren v. DeSantis. After Andrew Warren, State
Attorney for Florida’s Thirteenth Judicial Circuit, signed statements issued by
a criminal-justice nonprofit articulating progressive positions on transgender
rights and abortion, Governor Ron
DeSantis (R-Fla.) suspended Warren from office. Warren sued,
claiming that his suspension constituted retaliation for protected speech, in
violation of the First Amendment.
The district court upheld the suspension, but the unanimous
Eleventh Circuit panel vacated and remanded, concluding that Judge Robert Hinkle (N.D.
Fla.) analyzed the relevant factors incorrectly. Judge Newsom joined Judge
Pryor’s opinion in full but also wrote an excellent concurrence, which ended as
follows (citations omitted):
The First Amendment is an inconvenient thing. It protects
expression that some find wrongheaded, or offensive, or even ridiculous. But
for the same reason that the government can’t muzzle so-called “conservative”
speech under the guise of preventing on-campus “harassment,” the state can’t
exercise its coercive power to censor so-called “woke” speech with which it
disagrees. What’s good for mine is (whether I like it or not) good for thine.
Amen. As Mark
Joseph Stern wrote in Slate, this ruling won’t help Judge Newsom’s
chances for being appointed to the Supreme Court in a Republican
administration—but it shows that he’s a principled and independent jurist.
Second, Judge Newsom joined the unanimous opinion of Judge Adalberto Jordan in Young Israel of Tampa, Inc. v. Hillsborough Area Regional
Transit Authority (HART), which addressed HART’s policy
of rejecting advertisements that “primarily promote a religious faith or
religious organization.” Judge Jordan’s opinion concluded that “HART’s policy,
even if viewpoint neutral, is unreasonable due to a lack of objective and
workable standards.”
Judge Newsom authored a vintage Newsom concurrence, scholarly
and thoughtful, exploring a profound question in the First Amendment context:
“What, exactly, is religion?” The concurrence isn’t easily summarized, but his
bottom line is that it’s exceedingly difficult “to settle on a precise,
necessary-and-sufficient definition of ‘religion,’ and thus of ‘religious’
speech”—and thus many cases decided as First Amendment “religious speech” cases
might be “better handled under the Free Exercise Clause.”
Finally, turning to another thorough, learned opinion that
doesn’t lend itself to easy summary, Judge Newsom joined Judge Britt Grant’s opinion
for a unanimous panel in McDonough v. Garcia. The opinion
undertakes a very Newsom-esque project, trying to make sense of confusing and
conflicting precedents about different types of public forums and how they
should be analyzed under the First Amendment. As noted by John Ross of Short Circuit, “[t]here’s a lot going on in
this retaliatory arrest case arising out of Florida”; I’ll just highlight my
favorite part (citations omitted):
[M]ere words of anger, including profanity, directed at a police
officer are not enough to sustain a disorderly conduct arrest. Nor are obscene
gestures, whether alone or combined with verbal antagonism. Raising one’s
middle finger or the equivalent is simply another way of saying “f**k
you”—rude, but not illegal.
Judge Grant, like Judge Newsom, is a generally conservative
Trump appointee; she’s definitely not anti-law-enforcement. But she is, like
Judge Newsom, very pro-First Amendment—and her McDonough opinion reminds police officers
that the Amendment applies to them too.
