This article first appeared in the St. Louis Beacon, April 21, 2010 - One of the main accomplishments of the Roberts Supreme Court is a robust interpretation of the First Amendment. But it is a robustness with a decidedly more conservative flavor than most of the famous free speech battles of the 20th century.
This week, Chief Justice John G. Roberts Jr. wrote a strong opinion refusing to create a new category of unprotected speech that would have allowed the prosecution of depictions of animal cruelty. In overturning the law, the chief justice wrote that the court does not have “freewheeling authority” to create new categories of unprotected speech. Roberts criticized President Barack Obama’s administration for proposing a lax, balancing test for creating new classes of unprotected speech, calling the test “startling and dangerous.”
The strong, 8-1 decision follows the landmark Citizens United decision from earlier this year. In that case, the court ruled that corporations have First Amendment rights in elections to use unlimited amounts of money to pay for advertising campaigns to help elect political candidates.
In another First Amendment case before the court this week, a Christian student group at the University of California’s Hastings College of Law asked the justices to extend First Amendment protection to the group’s policy of excluding gays and lesbians from leadership positions. When a discriminatory policy is the result of a deeply held religious belief, that belief should be protected by the First Amendment, the group argued.
The lawyer for the university reminded the court that it had found that Bob Jones University could not continue to receive tax-exempt status even though its discriminatory policy was based on religious belief. But the lawyer for the students turned the argument on its head by saying the NAACP should not be forced to have a skinhead as a leader.
Next week the court will take up a fourth First Amendment case, this one a plea from Washington state residents who signed an anti-gay marriage petition. They want to keep their names secret to avoid harassment by supporters of same-sex marriage. If their names are made public, the citizens will be afraid to express their First Amendment views on this sensitive issue, they argue.
The American Civil Rights Union -– not to be confused with the American Civil Liberties Union -– argues in a brief, “There must be no place in our democracy for Brownshirts seeking to force their way through thuggery and violent intimidation.” But supporters of same-sex marriage cry foul when opponents claim to be the victims. How can citizens who want to deny gays the right to marry then claim to be the victim? they ask.
What all four of these disputes illustrate is that the First Amendment cases that the court is hearing these days are often ones where conservatives feel they are victimized by an oppressive liberal majority enforcing a political correctness. By contrast, in the 20th century, almost all of the free speech cases involved leftists, whether they were war protesters, civil rights activists, socialists or communists.
One more traditional First Amendment dispute also before the court challenges the law that makes it a crime to provide terrorists with “material support.” The Humanitarian Law Project argues that material support could cover pure speech.
The Supreme Court has refused for about three decades to create a new category of unprotected speech. The last one it created was child pornography. Others are incitement, obscenity, defamation, fraud, “fighting words,” true threats and speech that is part of criminal conduct.
The Obama administration proposed that the court use a simple balancing test in deciding whether to create a new category of unprotected speech -– “balancing the value of the speech against its societal costs.” That kind of lax test would result in barring all sorts of protected speech, Roberts wrote. The First Amendment protects hateful speech with little value.
Roberts wrote: “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”
The court concluded that the law Congress passed outlawing depictions of animal cruelty was far too broad. The law was aimed at a bizarre form of pornography where women kill small animals with their feet. But it was worded so broadly that it would include depictions of hunting. Such an overbroad law could not survive the First Amendment, the court said.