FAN 21 (First Amendment News) — Looking Back on the 2013-2014 Term & on The Roberts Court’s Overall Free Speech Record

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What a term it has been for the Roberts Court and free speech – Election campaign laws, union dues, government employee speech, abortion clinic buffer zones, and a presidential protest case. Also set out below are some related First Amendment events that occurred this Court Term along with a list of new books on free speech. Further down are some facts and figures concerning the Roberts Court’s overall record on free speech.

Disorder in the Court: Recall, too, that back in May there was a disruption inside the Court: “I arise on behalf of the vast majority of the people of the United States who believe that money is not speech,” the protester said, “corporations are not people and that our democracy should not be for sale to the highest bidder.” Before he was arrested, Noah Newkirk of Los Angeles also got in a few more words of protest: “overturn Citizens United” and “the people demand democracy.” Even more incredible, it was captured on video and released on the Web.

35 Cases: This Term the Roberts Court decided five First Amendment free expression cases along with three related free speech cases. The Justices also denied review in a campaign finance case while granting review in “true threats” case. All in all, the Roberts Court has now decided 35 free speech cases on First Amendment grounds.

→ “In Group Bias”: And then there was the empirical study by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Sega entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.”

Amending the 1st?: While much of this was going on, Justice John Paul Stevens released a book urging, among other things, that the First Amendment be amended. In the same vein, a Senate subcommittee first heard and then voted in favor of an amendment to the First Amendment.

→ New Books: Here are some of the new books that were published during this Court Term:

  1. Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan
  2. Ronald Collins & David Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment
  3. Shaun McCutcheon, Outsider Inside the Supreme Court: A Decisive First Amendment Battle
  4. Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution
  5. Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform (2014)
  6. Richard Fossey & Todd A. DeMitchell, Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues (2014)
  7. Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court & The Constitution (2014)

→ Law Review: A Harvard Law Review Symposium on free speech was published recently.

→ Flashback: Cass Sunstein on the 50th Anniversary of NYT v. Sullivan

“[A]mid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government. . . . False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” [Source: here]

→ The Play’s the Thing: Arguendo, a play about Barnes v. Glen Theatre, Inc. was performed earlier this year. 

Remember: This year we also lost a noted First Amendment figure with the passing of Professor George Anastaplo.

Supreme_Court_US_20102013-14 Term: First Amendment Cases

  1. [JR: 5-4]          McCutcheon v. FEC
  2. [RBG: 9-0]      Woods v Moss
  3. [SS: 9-0]         Lane v. Franks (commentary)
  4. [JR: 9-0]         McCullen v. Coakley
  5. [SA: 5-4]         Harris v. Quinn (symposium)

→ Here is the lineup of Justices writing majority opinions this term in First Amendment free expression cases:

  • Chief Justice Roberts             McCutcheon v. FEC   (vote: 5-4) &
  •                                                McCullen v. Coakley   (vote: 9-0)
  • Justice Ginsburg                    Wood v. Moss              (vote: 9-0)
  • Justice Sotomayor                 Lane v. Franks            (vote: 9-0)
  • Justice Alito                           Harris v. Quinn            (vote: 5-4)

Erin Murphy

Erin Murphy

Successful Lawyers in First Amendment Free Expression Cases Where Claim was Sustained

Related Cases

  1. [SS: 6-3] Air Wisconsin v. Hoeper (statutory question re malice)
  2. [JR: 9-0] United States v. Apel (military base: statutory interpretation)
  3. [CT: 9-0] Susan B. Anthony List v. Driehaus (Art. III standing re false political speech standard)

Review granted:

Elonis v. United States (true threats case)

Review denied: Some of the more notable First Amendment cases in which the Court denied review:

  1. Iowa Right to Life v. Tooker (campaign finance)
  2. Risen v. United States (reporter’s privilege)
  3. Minority Television Project, Inc. v. FCC (fairness doctrine) (see here)
  4. Pickup v. Brown (ban on “conversion therapy”)

Two+ Cases to Watch

  1. Republican National Committee v. Federal Election Commission (see post here) (*Rick Hasen’s pick of the campaign finance cases to watch — as Hasen said after McCutcheon came down: “the Court seems to open the door for a future challenge to what remains of the McCain-Feingold law: the ban on large, ‘soft money’ contributions collected by political parties. These contributions were banned because it had become clear that political parties were becoming conduits for access between elected officials and big donors. Today Roberts rejects ingratiation and access as a problem, and says that this funnel of significant money to parties could serve the purpose of strengthening political parties and thus be a good thing. He writes: ‘When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs.… To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process.’”) > For a companion case, see Libertarian Party of Indiana v. Federal Election Commission
  2. American Meat Institute v. AGR (see story here: “The U.S. Court of Appeals in Washington today threw out a March 28 ruling by a three-judge panel upholding the Department of Agriculture’s labeling requirements so all 11 judges on the court can reconsider a constitutional question of corporate free speech: Can regulators require labels only that ‘correct a deception’ such as false advertising or can they demand data for other purposes such as addressing consumer confusion?”)

Note: It is also possible, as Prof. Hasen’s opines, that we might see a return of Susan B. Anthony List v. Driehaus in “some kind of emergency basis” posture.

Most Revealing Lines of the Term:

→ From the Chief Justice’s majority opinion in McCullen v. Coakley

The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in McCutcheon v. Federal Election Commission (plurality opinion) But the distinction between that case and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon—the standard that was assumed to apply—would have required overruling a precedent. There is no similar reason to forgo the ordinary order of operations in this case.

Most Suggestive Lines of the Term:

→ Justice Scalia dissenting in McCullen v. Coakley:

“I prefer not to take part in the assembling of an apparent but specious unanimity. I leave both the plainly unnecessary and erroneous half and the arguably correct half of the Court’s analysis to the majority.”

First Amendment Precedents in Jeopardy after 2013-2014 Term:

Number of Amicus Briefs Filed: 81

20       McCutcheon v. Federal Election Commission

02        Wood v. Moss

12       Lane v. Franks

28        McCullen v. Coakley

19        Harris v. Quinn

Amicus Briefs Quoted or Cited: 9 (3 majority, 2 plurality, & 4 dissents)

McCutcheon v. Federal Election Commission

  1. National Republican Congressional Committee (plurality opinion)
  2. Cause of Action Institute (plurality opinion)
  3. Campaign Legal Center, et al. (Breyer, dissenting)
  4. Democratic Members of the US House of Representatives (Breyer, dissenting)

Lane v. Franks

  1. United States (majority opinion)

McCullen v. Coakley

  1. State of New York, et al. (majority opinion)

Harris v. Quinn

  1. United States (majority opinion)
  2. Paraprofessional Healthcare Institute (Kagan, J., dissenting)
  3. State of California, et al (Kagan, J., dissenting)

Roberts Court’s First Amendment Free Expression Record: 2006-2014

Number of First Amendment Free Expression Decisions: 35

  • First Amendment Claims Sustaine =         16 (46%)
  • First Amendment Claims Denied =           19 (54%)

Most Majority/Plurality Opinions

  1. Chief Justice Roberts    12
  2. Justice Kennedy            05
  3. Justice Scalia                05
  4. Justice Alito                   04
  5. Justice Breyer                03
  6. Thomas                          02
  7. Ginsburg                        02
  8. Sotomayor                     02
  9. Kagan                             0

5-4 Judgments by Roberts Court: 9 out of 35 Opinions

  1. Garcetti v. Ceballos (2006)
  2. F.E.C. v. Wisconsin Right to Life, Inc. (2007)*
  3. Morse et al. v. Frederick (2007)
  4. Davis v. Federal Election Commission (2008)*
  5. Citizens United v. Federal Election Commission (2010)*
  6. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)*
  7. McCutcheon v. FEC (2014)*
  8. McCullen v. Coakley (2014)
  9. Harris v. Quinn (2014)

* Indicates a campaign finance case (total of 5-4 judgments = 5)

The Anthony Kennedy Factor (AKF)

In their book Uncertain Justice: The Roberts Court and the Constitution (2014), Laurence Tribe and Joshua Matz note that Justice “Kennedy is the only justice to have voted with the winning side every time” in a free speech case decided by the Roberts Court.”

While true, it is well to note that Justice Kennedy was on the losing side of the majority opinion (though not the judgment) for the Court in McCullen v. Coakley.

Unanimous Judgments by Roberts Court: 11 out of 35 Opinions

→  Denying First Amendment Claim

  1. Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0]
  2. Davenport v. Washington Educ. Association (2007) [vote: 9-0]
  3. New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0]
  4. Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0]
  5. Locke v. Karass (2009) [vote: 9-0]
  6. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0]
  7. Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0]
  8. Reichle v. Howards (2012) [vote: 8-0]
  9. Wood v.Moss (2014) [vote: 9-0]

 Sustaining First Amendment Claim

  1. Lane v. Franks (2014) [vote-9-0 on FA issue only]
  2. McCullen v. Coakley (2014) [vote: 9-0]

Majority Opinions Authored by Female Justices: 4 out of 35 Opinions

→ Justice Sotomayor

  1. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0]
  2. Lane v. Franks (2014) [vote: 9-0]

→ Justice Ginsburg

  1. Golan v. Holder (2012) [vote: 6-2]
  2. Wood v.Moss (2014) [vote: 9-0]

Lone Dissent: 4 out of 35 Opinions 

  1. Justice Alito                United States v. Stevens (2010)
  2. Justice Thomas           Doe v. Reed (2010)
  3. Justice Alito                Snyder v. Phelps (2011)
  4. JusticeScalia               Borough of Duryea v. Guarnieri (2011)*

* Justice Scalia filed an opinion concurring in the judgment in part and dissenting in part.

First Amendment Cases re Employees: 5 Cases

  1. Garcetti v. Ceballos (2006) [vote: 5-4, per AK]
  2. ™Locke v. Karass (2009) [vote: 9-0, per SB]
  3. Knox v. Service Employees International Union [vote: 7-2, per SA]
  4. Lane v. Franks (2014) [vote: 9-0 per SS]
  5. Harris v. Quinn (2014) [vote: 5-4, per SA]

Last Scheduled FAN Column: # 20 — “New Book, New Legislation, New Study & More News

Last FAN Column: # 20.5 — “Move to Amend First Amendment Continues

Next Scheduled FAN Column: Wednesday, July 9th

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