Robert David Sack

Robert David Sack (born October 4, 1939) is a senior United States circuit judge on the Court of Appeals for the Second Circuit. Appointed by President Bill Clinton in 1998, he served as an active‑service judge until assuming senior status in 2009 and continues to hear cases. Over a career that spans private practice, legislative investigation, academia, and more than three hundred appellate opinions, Judge Sack has been recognized for his expertise in press law and First Amendment issues.

Early life and legal career

Robert Sack was born in Philadelphia, Pennsylvania, to Eugene and Sylvia Sack. His family relocated to Brooklyn, New York, where he was raised. Eugene Sack served as a Reform rabbi at Congregation Beth Elohim in Brooklyn for thirty‑five years, an environment that shaped the younger Sack’s early experiences. He pursued undergraduate studies at the University of Rochester, receiving a Bachelor of Arts degree in 1960. Continuing his education in law, he earned a Bachelor of Laws from Columbia Law School in 1963.

Following graduation, Sack began his legal career with a clerkship for Judge Arthur Stephen Lane of the United States District Court for the District of New Jersey. The clerkship lasted one year and provided him with early exposure to federal judicial processes. In 1964 he joined the New York firm Patterson, Belknap & Webb, where he practiced commercial law and gradually specialized in matters involving the press. His progression at the firm culminated in partnership in 1970.

In 1974 Sack entered public service as part of the House Judiciary Committee’s impeachment inquiry into President Richard Nixon. He first served as Associate Special Counsel and later as Senior Associate Special Counsel, contributing legal analysis to the committee’s investigation. After the conclusion of that work, he returned to private practice at Patterson, Belknap.

Sack’s reputation in media law grew during his subsequent years in private practice. In 1986 he moved to Gibson, Dunn & Crutcher as a partner, where he remained until his judicial appointment. Throughout his thirty‑three‑year tenure in the bar, Sack focused on national and international press law, representing numerous United States and foreign media organizations. His work in this field positioned him as a leading authority on First Amendment and defamation matters.

Beyond litigation, Sack authored several scholarly works. In 1980 he published *Sack On Defamation: Libel, Slander, and Related Problems*, a treatise that later reached its fifth edition in 2017. He co‑authored the first edition of *Advertising and Commercial Speech: A First Amendment Guide* (1999) with the late P. Cameron DeVore. His articles have appeared in prominent law reviews, including an analysis of opinion protection under the First Amendment in a Columbia Law Review anniversary issue and a reflection on the legacy of *New York Times Co. v. Sullivan* in the Alabama Law Review.

Sack also contributed to legal education. From 2001 through 2023 he served as an adjunct professor at Columbia Law School, teaching courses related to press law and First Amendment doctrine. He delivered the commencement address for Columbia Law School’s graduating class in 2007. Additional academic appointments included a stint as an adjunct professor of political science at the University of Rochester in 2012 and a distinguished visiting jurist role at the University of Chicago Law School in 2013.

His professional service extended to numerous organizations. He held officer and director positions with the William F. Kerby and Robert S. Potter Fund, which supports legal defense for journalists abroad. He served on advisory boards for the Bureau of National Affairs’ Media Law Reporter and the American Bar Association’s Forum Committee on Communications Law. Sack has been a member of Columbia Law School’s Board of Visitors and of the Board of Trustees for Columbia University Seminars on Media and Society. Since 2019 he has acted as an adviser to the American Law Institute’s Restatement (Third) of Torts, Defamation and Privacy, and to the Global Media Freedom Initiative’s High‑Level Panel of Legal Experts convened by the United Kingdom and Canada.

His affiliations include membership in the American Bar Association, the New York City Bar Association—where he chaired the Communications Law Committee from 1986 to 1989—the American Judicature Society, and fellowship in the American Bar Foundation.

Federal appellate service

President Bill Clinton nominated Sack on November 6, 1997 to fill a vacancy on the Second Circuit created by Judge Roger J. Miner’s departure. The United States Senate confirmed his appointment on June 15, 1998, and he received his commission the following day. Upon joining the bench, Judge Sack entered a court with jurisdiction over federal appeals from New York, Connecticut, and Vermont, regions that include many major media markets—a context well aligned with his professional background.

During his active service, Sack authored more than three hundred opinions and contributed dozens of concurring and dissenting writings. His judicial output reflects the breadth of issues presented before the Second Circuit, ranging from commercial disputes to constitutional questions. On August 6, 2009 he assumed senior status, a form of semi‑retirement that permits continued participation in cases while creating a vacancy for a new full‑time judge. As a senior judge, Sack remains an active participant in the court’s docket, hearing and deciding appeals alongside his colleagues.

Jurisprudence and legacy

Judge Sack’s judicial record demonstrates a consistent engagement with First Amendment principles, particularly as they intersect with media operations and defamation law. Several of his opinions have been highlighted for their impact on emerging legal questions.

In the case concerning Donald J. Trump and related entities, Judge Sack authored an opinion that declined to enforce an arbitration agreement in a dispute over alleged unfair business practices and deceptive statements tied to a multi‑level marketing venture. The decision underscored the court’s willingness to scrutinize arbitration clauses when consumer protection concerns are at stake.

Another notable opinion addressed claims under the Alien Tort Statute (ATS) brought by victims of terrorism against Arab Bank, PLC. Writing for the panel, Sack concluded that the ATS did not provide original jurisdiction over allegations that the bank had financed or facilitated organizations responsible for attacks in Israel and Palestinian territories. This ruling contributed to the evolving jurisprudence on the extraterritorial reach of U.S. statutes.

In a copyright dispute involving investment banks and an online aggregator known as Theflyonthewall.com, Sack’s opinion held that the “hot news” misappropriation tort was preempted by the Copyright Act. By emphasizing the supremacy of federal copyright law over state‑based claims in this context, the decision clarified the limits of competition‑based doctrines when applied to financial information.

Judge Sack also participated in a high‑profile civil liberties case concerning Maher Arar, a dual Canadian‑Syrian citizen detained by U.S. officials and subsequently transferred to Syria where he faced torture. While dissenting in part from the majority en banc opinion, Sack argued that a Bivens remedy—an implied cause of action for constitutional violations by federal officers—should have been available given the alleged denial of legal counsel and subsequent rendition.

In the realm of visual arts and copyright, Sack authored an opinion affirming that artist Jeff Koons was protected by the doctrine of fair use when he incorporated a photographer’s image of a woman’s feet into a larger collage. The ruling highlighted the balance between artistic expression and the rights of original creators, reinforcing fair‑use protections for transformative works.

Beyond specific cases, Sack’s broader legacy includes his contributions to legal scholarship and education. His treatise on defamation remains a frequently cited resource for practitioners navigating libel and slander claims. Through decades of teaching at Columbia Law School, he has influenced generations of lawyers who specialize in media law and constitutional issues. His involvement with professional organizations and advisory panels reflects an ongoing commitment to the protection of press freedoms both domestically and internationally.

Overall, Judge Robert D. Sack’s career embodies a blend of practical litigation experience, legislative investigation, academic scholarship, and judicial service. His expertise in First Amendment matters has shaped significant appellate decisions, while his scholarly work continues to guide practitioners and scholars alike. As a senior judge on the Second Circuit, he remains an active participant in the development of federal law, particularly in areas that affect the press and public discourse.