The Roberts Court and the First Amendment
on Jul 9, 2013 at 11:34 am
It is a fact: Chief Justice John Roberts has authored twice as many First Amendment freedom of expression opinions for the Court than any of his colleagues. His recent majority opinion in Agency for International Development v. Alliance for Open Society International, Inc. (2013) brought the number of these opinions to ten. The Chief Justice has already surpassed the number of such opinions authored by his predecessors Chief Justices Earl Warren (six opinions) and Fred Vinson (five opinions). And a mere eight years into his term, the fifty-eight-year-old jurist might equal or better the record of Chief Justice Warren Burger (eighteen opinions in seventeen years). But the record of his former boss, Chief Justice William Rehnquist (thirty opinions in nineteen years) will be a difficult one to top. (So, too, for Rehnquist’s record in denying such claims – eighty percent of all such cases he participated in during his entire tenure on the Court.
As of the end of the October Term 2012, here is the tally for the thirty First Amendment freedom of expression opinions handed down by the Roberts Court between 2006 and 2013:
Author of majority/plurality opinions
Roberts 10
Kennedy 5
Scalia 5
Breyer 3
Alito 3
Thomas 2
Ginsburg 1
Sotomayor 1
Kagan 0
Here are some more facts about the breakdown of those thirty opinions:
- The Court affirmed a First Amendment free expression claim in thirteen of those thirty opinions.
- It was unanimous in seven of the cases in which it denied such claims.
- It divided five to four in six of the thirty cases.
- Three Justices authored two-thirds (twenty) of the thirty opinions: the Chief Justice and Justices Anthony Kennedy and Antonin Scalia.
What are we to make of such numbers and the Roberts Court’s record in this area? A few preliminary and abbreviated observations are set out below. (A more extended discussion can be found in my article entitled “Foreword: Exceptional Freedom – The Roberts Court, the First Amendment, and the New Absolutism,” 76 Albany L. Rev. 409 (2013).)
Free expression record
On the one hand, Chief Justice John Roberts and some of his colleagues have given First Amendment freedoms fortified protection. Just consider cases such as United States v. Stevens (2010), Brown v. Entertainment Merchants Association (2011), Snyder v. Phelps, and United States v. Alvarez (2012). And then there is the controversial ruling affirming a First Amendment claim in Citizens United v F.E.C. (2010). In all of these cases and others, a majority or plurality has extended near-absolutist protection to First Amendment rights.
On the other hand, if the Roberts Court’s record is a cause for elation in some First Amendment quarters, then its rulings on student speech (Morse v. Frederick (2007)), government employee speech (Garcetti v. Ceballos (2006)), and prisoner speech (Beard v. Banks (2006), along with its anti-terrorism material support ruling (Holder v. Humanitarian Law Project (2010)), must be cause for warranted discontent.
The Court has divided along ideological lines (“conservative” vs “liberal”) in all of its five-to-four free expression opinions. While labels are often misleading, when the Court is badly divided, the Chief Justice Roberts along with Justices Kennedy, Scalia, Thomas, and Alito line up in one camp, while Justices Ginsburg, Breyer, Sotomayor, and Kagan line up in another one.
Notably, the vote was unanimous or near unanimous in almost a third of the cases in which the Court denied a First Amendment free expression claim. In only two of those nine cases did the Court vote to affirm a lower court. This tells us something about why the Court takes cases in the first instance. That is, there is a certain corrective mindset at work here to rein in what is seen by all or most of the Court’s members as excessive deference to First Amendment claims.
The key figures
Judging from the federal government’s briefs that he co-authored (in his role as the Principal Deputy Solicitor General) in United States v. Edge Broadcasting Co. (1993) (arguing against commercial speech claim) and Rust v. Sullivan (1991) (defending free speech restrictions placed on government-funded programs), one might have thought that John Roberts would have a cramped view of the First Amendment. That, however, has not proven to be the case, as the Chief Justice has often provided (by his authorship of a majority opinion or by his vote) a generous dollop of protection in First Amendment cases.
Chief Justice Roberts is at the helm of the Court’s new First Amendment jurisprudence. As noted above, his number of majority opinions far exceeds those of all others on the Court, including Justice Anthony Kennedy. And consider the fact that he wrote the majority opinions in Morse v. Frederick and Holder v. Humanitarian Law Project, two important First Amendment cases in which the free speech claims were denied. Then again, he also wrote the majority opinions in United States v. Stevens and Snyder v. Phelps in which the Court boldly sustained the free speech rights at stake in those cases. Also, more than all others, the Chief Justice assigned to himself four of the Court’s twelve opinions in First Amendment free expression cases (claims affirmed and denied) in which the judgment was unanimous or near unanimous.
Justice Kennedy is also a force in this area of law. He authored the majority opinions in Citizens United and Sorrell v. IMS Health Inc. (2011) (the commercial expression case) and the plurality opinion in United States v. Alvarez (the Medal of Valor case). Though for different reasons, these are significant opinions that will have an important and long impact on the development of free speech jurisprudence. More broadly speaking, Justice Kennedy voted to affirm First Amendment free expression rights claims in three of five such cases in which he authored a majority or a plurality opinion.
Justice Antonin Scalia authored three the Court’s twelve opinions in First Amendment free expression cases (claims affirmed and denied) in which the judgment was unanimous or near unanimous. This tells us that after himself, the Chief Justice Roberts seems more likely to assign such an opinion to Justice Scalia than to any of his other colleagues on the Court. But when the vote is closer, Justice Scalia is not the Justice likely to be selected to write for the Court.
When Justice Stephen Breyer has been assigned to write a lead opinion for the Roberts Court, it is typically in cases in which the First Amendment claim has been denied. Otherwise, he often finds himself in disagreement with the “conservative” bloc. For example, he dissented in many of the Roberts Court’s campaign finance cases. So, too, he broke company with the Court’s “conservative” wing in employee speech and student speech cases and likewise took strong exception to the majority opinions in Holder v. Humanitarian Law Project and Sorrell.
Justice Clarence Thomas has a mixed record on free expression issues. During his tenure throughout the Roberts Court’s years, he was a near-absolutist when it came to deregulating elections and protecting commercial speech. Then again, he withheld First Amendment protection in cases involving bans or limits on video games, prisoner speech, government employee speech, student speech, and in matters involving public employee unions and material support for so-called terrorists groups.
Notably, in his concurrence in Morse v. Frederick (2007) Justice Thomas argued that the “the First Amendment, as originally understood, does not protect student speech in public schools,” Tinker v. Des Moines (1969) notwithstanding. To much the same effect, in his dissent in Brown v. Entertainment Merchants Association (2011), Justice Thomas maintained that the “practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” Hence, in a few select categories of cases, Justice Thomas votes like an absolutist, though in a good number of other free speech categories he moves in quite the opposite direction.
The next Term
As of now, in the coming Term the Court will hear oral arguments in three free expression cases:
- McCutcheon v. F.E.C. (another campaign financing case),
- McCullen v. Coakley (an abortion clinic “bubble” zone protest case), and
- United States v. Apel (protesting at a military installation that is subject to a public roadway easement).
In the McCutcheon case, if a majority extends the reach of Citizens United and relaxes some of the limitations announced in Buckley v. Valeo (1976), then existing First Amendment law could change in a significant way. In McCullen, if the Court limits or overrules its ruling in Hill v. Colorado (2000), as the issue has been framed in the case, then here, too, it would buttress First Amendment rights, though to the dismay of abortion-rights advocates. And in the Apel case, if the Court proceeds past the statutory and related arguments raised in the case, then First Amendment law public fora law as announced in United States v. Grace (1983) stands to be extended or curtailed.
Future study
To be sure, there is more to the First Amendment record of the Roberts Court than tallies and the like – there is normative, doctrinal, and historical analysis. And in some cases, such as Golan v. Holder (2012) (re copyright and the First Amendment), the issue at hand is conceptually complicated and not readily explained by an “up or down” vote on the First Amendment. Similarly, in other cases, such as Reichle v. Howards (2012) (denying First Amendment right by a vote of eight to zero), the underlying facts make it difficult to sustain a free speech claim.
That said, we nonetheless have a sketch for a future portrait of the Court’s record in deciding the thirty cases it has. By that measure, the Roberts Court has sometimes enriched the First Amendment by way of unprecedented protection, while at other times it has devalued the currency of that fundamental freedom.
Later this summer SCOTUSblog will post an online symposium on McCutcheon v. F.E.C. Scheduled contributors include Erwin Chemerinsky, Ronald Collins, Robert Corn-Revere, Joel Gora, Justin Levitt, Tamara Piety, Martin Redish, and Adam Winkler.
Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel to the Petitioners in Golan v. Holder and the Respondents in Sorrell v. IMS Health Inc. The author of this post is not affiliated with the firm, however.
