Joel Gora, The Roberts Court & the Future of Free Speech

Below is a post by a guest blogger, Professor Joel M. Gora. He is on the faculty of the Brooklyn Law School where he teaches constitutional law and related courses and has written extensively on First Amendment issues. He served as a lawyer for the national ACLU for nearly a decade and worked on dozens of United States Supreme Court cases, including many landmark rulings (see e.g., herehereherehere, and here). Chief among them was Buckley v. Valeo (1976). He worked on behalf of the ACLU on most  of the important campaign finance cases to come before the Court. He also served for more than 25 years on the board of directors of the New York Civil Liberties Union and was one of its general counsel. The views expressed here are his own. — rklc

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The new Supreme Court Term that begins today marks the tenth anniversary of “the Roberts Court,” which reached full complement in January 2006. That was when Associate Justice Samuel Alito joined the Court, which Chief Justice John G. Roberts had been appointed to lead a few months earlier. The resulting coalition of a five-Justice “conservative majority” has had significant impact on the Court’s jurisprudence in a number of areas, and this has been especially evident in its rulings on the crucial First Amendment right of freedom of speech. In my view, “the Roberts Court” may well be the most speech-protective Court in a generation – if not in the Nation’s history – reaffirming and expanding extraordinary protection for free speech in a variety of settings. In the process, the Court has rebuffed numerous attempts by government and its allies to restrict established free speech protections or create new free speech limitations.

Professor Joel Gora

Professor Joel Gora

First, in a series of cases, the most well-known of which is Citizens United v. Federal Election Commission (2010), the Court has been insistent that protecting political speech is at the heart of the First Amendment’s purposes in a democracy and that limits on political spending are limits on political speech and can rarely be justified. The Court’s theory, echoing earlier rulings, is that government restrictions on how much can be spent to speak about politics and government and what individuals or groups can do the spending and speaking are fundamentally anathema to the essence of political freedom of speech and association.

In these campaign finance cases, the Court has also reaffirmed a theme that transcends politics: that another core purpose of the First Amendment is to guarantee that the people, not the government, get to determine what they want to say and how they want to say it. This liberty-affirming concept, which celebrates the autonomy of each person and group and condemns censorship of thought and speech by government, has application well beyond the political realm and guarantees the strongest protection to free speech in a number of settings, including protection for artistic, corporate and commercial speech as well. In all of these areas the Roberts Court has insisted that the First Amendment presumption against government censorship is but another recognition of individual and group freedom.

Applying these principles, the Court has steadfastly refused to declare speech that many deemed socially worthless to be beyond the pale of the First Amendment’s protection. In rejecting government efforts to criminalize depictions of animal cruelty, regulate the sale of violent video games to young people, punish those who lie about receiving military honors, unduly regulate those who protest near abortion clinics, and permit damages to the targets of even hateful and hurtful homophobic slurs and insults, the Court has reaffirmed that it is the individual, not the government, who must judge the worth of such speech. In those cases the Court emphatically refused to expand the very short list of “non-speech” exceptions from First Amendment protection, such as, obscenity and fighting words.

To be sure the Roberts Court has not invariably ruled in favor of free speech claims. It has allowed government, in some circumstances, to censor student speech, government employee speech, certain forms of campaign funding associated with elections to judicial office, and speech supporting terrorist organizations. It has also given government some leeway to control speech on or utilizing government’s own property. But these few exceptions help prove the rule that, outside these few instances, the Court has insisted on preserving the vital individual and societal First Amendment values served by affording the most rigorous protection to free speech.  The same regard for the individual can also found in a number of significant cases where the Court has protected religious freedom against the demands of government, including safeguarding the rights of a church to determine whom to hire as a teacher, a family-held company to resist providing health care insurance against its religious convictions, a Muslim prisoner to wear a beard for religious reasons despite prison security concerns, and an employee to wear a religious head scarf despite a company’s dress code appearance rules.

What does the future hold for free speech in the Roberts Court? The Court’s free speech docket for the upcoming Term is a modest one at this point, though involving an important case about whether non-union public employees can be compelled to pay the union for representing them against their will. Also, the court has just agreed to hear a government employee free speech case. So, time will tell whether the Roberts Court will continue to be the surprisingly powerful voice for free speech that it has become.

Dissenting Justices and prominent legal scholars have suggested that the Roberts Court has gone too far in overprotecting freedom of speech and not properly taking account of, and balancing the needs of, government which have been advanced to justify the particular restrictions on speech at issue. Other critics write off the Court’s free speech jurisprudence as simple right-wing favoritism of the rich and the powerful, insisting instead that the First Amendment should mainly protect just the deserving “lonely pamphleteer” or “soapbox orator” of an earlier era.

Ironically, liberals who usually led the fight for free speech a generation ago are more likely to be leading the charge to restrict free speech today. The current Court, however, has strongly maintained that the First Amendment must be available to every person or group who would seek to exercise its rights and has refused to means-test free speech protection. In taking that position, the Roberts Court is relying on free speech themes sounded in earlier, more “liberal” eras of the Court and building upon and strengthening the foundational pillars of free speech erected by the great Justices like Holmes, Brandeis, Black, Douglas and Brennan.

And, that is all to the good for one final, troubling, albeit ironic reason.  In a time when the Supreme Court seems to be affording more free speech in its rulings than any predecessor Court has done, in everyday life, these are trying times for free speech. Censorship seems to reign, both at home and abroad, in what sometimes seems to be a war on free speech. Whether it be the instantaneous condemnation and punishment of fraternity members for singing racially offensive lyrics at a social event, the brazen murder of journalists for producing anti-Muslim cartoons and commentary, or the cancelling of celebrity contracts for making offensive remarks or expressing unpopular views, free speech in everyday life seems often under attack and in jeopardy.

Enhanced by technology, and “going viral,” one slip of the tongue, caught on camera or recorder, can ruin an individual’s career or life prospects. Technology has also facilitated unprecedented surveillance of citizens, which can create a new form of chilling effect to suppress criticism of government. And, too often, our campuses, rather than being sanctuaries of free speech, thought and inquiry, are venues for suppression and censorship of “hurtful” ideas.

In the face of these various suppressions of speech, it is imperative that at least where the law is concerned the Supreme Court continues to make it quite clear that free speech must be the rule and government censorship the rare exception.

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5 Responses

  1. Derek Bean says:

    How does the decision in Holder v. Humanitarian Law Project fit into your analysis that the Roberts’ Court is “the most speech-protective Court in a generation – if not in the Nation’s history”?

  2. Brett Bellmore says:

    “Ironically, liberals who usually led the fight for free speech a generation ago are more likely to be leading the charge to restrict free speech today.”

    The ugly truth is, for a large faction of the left, the only objection they ever had to censorship was that THEY wouldn’t get to be the censors. It was never a matter of principle, or if it was, the principle in play was, “Everything that advances my cause is good, everything that might harm it is bad.”

    There is, of course, a similar faction on the right, who only figured out that censorship could be bad when that power was seized by their foes.

    It’s hard to tell principle from expediency, when they’re aligned. It’s when they fall into opposition that the difference becomes glaring.

  3. Joe says:

    “liberals who usually led the fight for free speech a generation ago are more likely to be leading the charge to restrict free speech today”

    Conservatives limit free speech inside abortion clinics, in respect to sexual speech in a variety of contexts, regarding certain type of ideological speech deemed inappropriate (involving Palestinians and other groups), regulating what teens can see (in the high school speech context, when has liberals been so much less speech enforcing other than in respect to harassment?) and other areas. Another area conservatives are not very free speech orientated is speech as government employment.

    Speech is regulated in a range of ways & there is a great debate over when that is proper. Quite true censors of various types like to be in control — they are the ones who know the “right” type and how to apply the rules. Less true a very “large” faction of “the left” (appreciate the mild attempt at evenhandness) only object to censorship they cannot control. The left is concerned with various types of free speech overall.

  4. Brett Bellmore says:

    Joe, it’s not conservatives drafting the literally insane speech codes at various universities, so I’m not sure why you’re pinning that “in respect to sexual speech” charge on the right. In any event, I’d agree there are would-be censors across the political spectrum.

    But at the moment the primary advocates of censorship are on the left. Who’s proposing to amend the 1st amendment to strip political speech of it’s protection? Not conservatives, but ‘liberals’. The ACLU is in hot water with it’s usual base over it’s victory in Citizens United. They’re learning now how many of their allies on the left were allies of convenience, not principle.

  5. Joe says:

    I’m not focusing on a specific thing — that’s why (you seem to skip over things) I listed a range of things — but conservatives have been concerned with various types of sexual speech in “in a variety of contexts.” For instance, not allowing “promotion of homosexuality” in high schools. This is the norm — a range of people have their own ox to gore as you do with your continual focus on certain matters here.