This article first appeared in the St. Louis Beacon, June 29, 2011 - Free-speech law is nearing the century mark with a golden age of robust rulings under Chief Justice John G. Roberts Jr., one that compares with an earlier golden age under the Warren court in the 1960s.
The Roberts court has protected the free speech rights of corporations, protesters at soldiers' funerals, filmmakers depicting animal cruelty, companies that mine information from databases, producers of violent video games and the teens who want to watch them as well as political candidates who shun public financing.
Underneath this broad-brush trend, the situation is a little more complicated. Those arguing for free speech don't always win with the Roberts court. The court upheld the discipline of a student who unfurled a goofy "Bong Hits 4 Jesus" banner across from his school. It refused to protect the free-speech rights of a human rights group accused of providing "material support" to a terrorist group, even though the support was human rights advice. And it ruled against an assistant prosecutor whose boss demoted him because he refused to tone down a memo criticizing a sheriff. (Click here for a New York Times graphic summarizing the most recent Supreme Court term.)
The prosecutor and the student might have been more likely to win their free speech claims when Earl Warren was chief justice. The Warren court proclaimed that students' free-speech rights did not end at the "schoolhouse gate" and that public employees should be protected when they speak out on a matter of public interest.
In other words, the kinds of free-speech claims that win with the Roberts court often are different in kind from those that won during the Warren court. The Roberts court is more likely to favor the speech of monied interests, while the Warren court was sympathetic to protesters and other outsiders.
Still, the decisions of both the Warren and Roberts courts protect unpopular speech that democratic majorities want to stifle.
In the Warren era, it was communists, civil rights protesters, the Ku Klux Klan, a young man wearing a "F--- the draft" jacket in a courthouse. In the Roberts era, insiders are sometimes on the outs with political majorities -- corporations making political expenditures, candidates using their own money to run against publicly financed candidates, firms using data from computerized databases.
In these latter cases, it is generally a conservative majority that takes the stronger free-speech position -- not surprising in that it is the speech of conservative interests that it is generally supporting. The string of cases where the Roberts court has dismantled key provisions of federal and state campaign finance laws have been 5-4 rulings with the conservatives on top.
When Liberals Join Conservatives
From time to time, a case comes along that attracts the more libertarian conservatives and liberals. This week's decision striking down California's law against violent video games was a good example. Justice Antonin Scalia, one of the court's most conservative members, wrote the sweeping majority opinion, joined by Justice Anthony M. Kennedy and by liberal Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.
Two decades ago, Scalia and Kennedy joined the free-speech leader of that era, Justice William J. Brennan Jr., in the 5-4 decisions protecting a protester's right to burn the American flag.
Dave Roland, director of litigation at the libertarian Freedom Center of Missouri, compared the Warren and Roberts courts in an email. "The Warren court's decisions were probably more important overall because they dealt with speech directly challenging government actions and authority, but the Roberts court...seems (for better and for worse) to be vindicating the principles established by the Warren court."
Burt Neuborne, a New York University law professor and former director of the ACLU, called the Roberts court "the strongest First Amendment court in history." That doesn't mean that the liberal civil libertarian always likes it. Neuborne had supported the Arizona public financing law that the court threw out this week because it put candidates who did not agree to public funding at a disadvantage.
"The current majority," Neuborne told Bloomberg, "uses the First Amendment as a powerful tool of deregulation that eliminates virtually all government efforts to regulate anything to do with the flow of information."
Lee Epstein, a Northwestern law and political science professor who formerly taught at Washington University, made a similar point in the New York Times: "For the conservatives, the First Amendment continues to trump other values, especially if they can help business in the process," she said.
Chad Flanders, a professor at Saint Louis University Law School, says the Roberts court's approach to free expression has been increasingly absolutist since last term's decision in U.S. vs. Stevens, protecting the video depiction of animal cruelty. That absolutism was reflected, Flanders said, in this week's decision on violent video games.
"What strikes me," Flanders wrote in an email, is the "increasing reliance on the rigid categorization of Stevens. Basically, if the speech isn't of the previously defined 'low or no value' speech categories, such as obscenity, incitement or fighting words, it's going to be hard for legislatures to regulate that speech. Moreover, you can't create new categories of low or no value speech....(such as) violent video games."
Dawn of First Amendment Law
The First Amendment was added to the Constitution in 1791, but First Amendment jurisprudence is less than a century old. No law had been thrown out for violating the First Amendment before World War I. The fear that surrounded that war resulted in laws that put anarchists and communists in jail for opposing the draft and the war.
At first, Justice Oliver Wendell Holmes supported decisions like the one that put Eugene Debs, the Socialist presidential candidate, in prison for speaking against the draft. But gradually, Holmes and the other brilliant justice of the time, Louis Brandeis, broke with the rest of the court and began developing modern First Amendment law.
Holmes believed in a marketplace of ideas where the best ones would win out. "The best test of truth is the power of the thought to get itself accepted in the competition of the market," he said. For Brandeis, free speech was a tool of democracy, the way to find "political truth."
Brandeis also had a finely developed belief in the right of individual privacy. The belief in privacy and his support for speech as a means of democracy could have left him among the dissenters who opposed broad free-speech claims in the funeral protest, data gathering and campaign finance cases.
Justice Stephen Breyer's views may be the closest to Brandeis', but Roland sees Breyer as having the "narrowest view of free speech" on the current court. In student speech cases, however, no one has a narrower view than Justice Clarence Thomas who believes student have no speech rights because they didn't in 1791.
Kennedy and Roberts
The sparkplugs of the Roberts court on free speech are Kennedy and the chief justice himself.
"Kennedy seems to be the leading voice when it comes to the broad spectrum of individual liberty," wrote Roland, "but I think that the chief justice is challenging Kennedy for leadership in the area of free speech. Roberts has taken it upon himself to write the opinions in several of the major free-speech cases from the past few years."
Roberts wrote the decisions protecting the Rev. Fred Phelps' anti-gay protests at service members' funerals, films with depictions of cruelty to animals and this week's decision striking down Arizona public financing.
SLU's Flanders finds Roberts' broad protection of categories of speech as less satisfying than Breyer's narrower, more nuanced approach.
Roberts' "whole categorization test becomes a self-fulfilling prophecy: new categories (of unprotected speech) can't be created because they aren't in the list of traditional categories. The list is also pretty rigid because the majority on the court seems reluctant to credit any analogies between new types of speech and the traditional categories. So, for example, they reject Breyer's analogy between selling smut to kids and selling them violent video games.
"I tend not to like the 'categories' approach because it leaves all the hard work of saying why these categories are special to one side. We just get to look at the list, and if the speech in question isn't on that list, then you can't really regulate it. In that respect...the dissent by Breyer (in the video games case) is more intellectually satisfying. (He) asks, what are the harms in allowing this kind of speech? How well do these restrictions help stop that harm? "
Mark Sableman, a media lawyer at Thompson Coburn, thinks that Kennedy has become one the court's most important "expounders and developers of First Amendment law," especially after writing the data-gathering opinion.
In that decision, the court ruled that Vermont could not stop pharmaceutical companies from obtaining data on doctors' prescription-writing practices -- data the companies used to market their more expensive, brand-named drugs to the doctors. Vermont had tried to block this prescription information to protect the privacy of the doctor-patient relationship and to keep down health-care costs. Kennedy wrote that the First Amendment keeps the state from singling out "disfavored speech by disfavored speakers." The disfavored speech was the marketing of brand-name drugs and the disfavored speakers were the pharmaceutical companies.
Protecting pharmaceutical companies isn't exactly protecting draft protesters, but the drug companies' speech ended up on the short-end of a democratic vote as did the speech of Eugene Debs almost 100 years ago.
Kennedy's influence is enhanced because he is the justice who bridges the liberal-conservative gap on the court, most often casting the deciding vote in 5-4 decisions, two-thirds of the time joining the conservatives.
Sableman, who once was president of the ACLU of Eastern Missouri, said he was disappointed that the court split along its ideological faulty lines in the Vermont data-gathering case. Only Sotomayor crossed the divide to join the five conservatives in supporting the data gathering.
Sableman, who sees data gathering as equivalent to newsgathering and thus fully deserving of first amendment protection, attended the oral argument in the Vermont case and afterward expected a near-unanimous free-speech decision. He said the ultimate ideological split in that case dramatized for him the extent to which each justice's basic liberal or conservative instincts affect decision-making, even in the area of free speech.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.