FAN 98 (First Amendment News) The Roberts Court’s 5-4 First Amendment Rulings — Will They Survive?

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Justice Scalia’s passing is a huge eventIlya Shapiro

America today is one Supreme Court vote away from a radical truncation of the First Amendment’s protection of freedom of speech. — George Will 

It might be that . . . determined campaign finance reformers like me just got the opening [we] need. — Richard Hasen

Last week I listed Justice Antonin Scalia’s First Amendment free-expression opinions — majority, concurring, and dissenting. In light of the Justice’s passing, renewed attention is certain to focus on those First Amendment rulings in which the Roberts Court was divided by a 5-4 margin and in which Justice Scalia cast the deciding vote. Below is a list of the Court’s 5-4 rulings in which Justice Scalia was in the majority:

  1. Garcetti v. Ceballos (2006)
  2. 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. Harris v. Quinn (2014)
  8. McCutcheon v. Federal Election Commission (2014)

Hence, depending on the future makeup of the Court, the following categories of speech cases could be in doctrinal flux: government employee speech, student speech and various forms of campaign finance speech.

Though Holder v. Humanitarian Law Project (2010) was a 6-3 ruling (with Justice Scalia in the majority), Justice Stevens joined the conservative bloc. Since then he has been replaced by Justice Elena Kagan. If Justice Kagan were to join the dissenters in the case (Justices Ginsburg, Breyer & Sotomayor), that would leave a 4-4 split. Here, too, a new Justice could tilt the outcome in a future case.

The Public Employees Union-Fee Case & the Future of Abood

And then there is Friedrichs v. California Teachers Association, et al., which was argued last month. Recall the two issues raised in that case:

  1. Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and
  2. Whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
Justice Scalia

Justice Antonin Scalia

After oral arguments in the case, Adam Liptak noted that the “Supreme Court seemed poised on . . . to deliver a severe blow to organized labor. . . . [T]he court’s conservative majority seemed ready to say that forcing public workers to support unions they have declined to join violates the First Amendment. . . . The best hope for a victory for the unions had rested with Justice Antonin Scalia, who has written and said things sympathetic to their position. But he was consistently hostile” during oral arguments in Friedrichs:

Here are some of Justice Scalia’s comments from those oral arguments:

  • “Mr. Carvin, is ­­ is it okay to force somebody to contribute to a cause that he does believe in?”
  • “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition.”
  • “Why do you think that the union would survive without these ­­ these fees charged to nonmembers of the union? Federal employee unions do not charge agency fees to nonmembers, and they to survive; indeed, they prosper. Why ­­ why is California different?”

In light of the likely 4-4 divide on the Court following Justice Scalia’s death, Friedrichs may either be summarily affirmed on rescheduled for oral argument at some unknown date.

The Future of the Roberts Court’s Campaign Finance Rulings

Professor Richard Hasen

Professor Richard Hasen

Writing in Politico, Professor Richard Hasen noted that “[a] lmost all of the important campaign finance decisions for a generation have been decided by a 5-4 majority on the Supreme Court. In some periods, the Court has been narrowly in favor of limits. More recently, the pendulum has swung to an absolutist view of the First Amendment, which sees most limits on money in politics as obstructions of free speech and thus unconstitutional.”

“His opposition to limits began in 1990,”Hasen continued,” when Scalia dissented from a Supreme Court decisionAustin v. Michigan Chamber of Commerce, allowing limits on how corporations can spend money in elections. He called the decision requiring corporations to use a political action committee for election ads “Orwellian,” and for the next 25 years he dissented and fought against Supreme Court decisions that allowed sensible limits on money in politics. Scalia finally got his way in the 2010 Citizens United case, which overturned Austin in a 5-4 decision and ushered in our current era . . .”

→ In another post, Professor Hasen also notes that “[o]ne of the first ways that Justice Scalia’s absence will be felt in Court decisions is on emergency motions and stay request which make its way to the Supreme Court on an expedited basis, what Prof. Will Baude calls the Supreme court’s ‘shadow docket.‘”

Student Speech After Morse v. Frederick

Greg Lukianoff

Greg Lukianoff

Shortly after the Court handed down its 5-4 ruling in Morse v. Frederick (2007), FIRE’s Greg Lukianoff wrote: “Even days after the opinion was handed down, it is difficult to know where to begin in dissecting the potential harm of the Morse v. Frederick opinion. One thing is clear to me, however: there is a word missing from the opinion that could have helped re-focus and clarify the case and might have helped convince the Court to avoid its risky adventure into new viewpoint-based restrictions on speech. That word is ‘joke.'” (June 29, 2017)

In light of Justice Scalia’s passing, Lukianoff has now “come to believe that even if it were decided last week, ​Fredrick would have prevailed on his free speech claim (not the QI claim, though) if only because of Robert’s evolution on freedom of speech. But now with Justice Scalia gone, I tend to think a future Court would simply ignore the opinion and if a case like it came up again they would be inclined to take the strong free speech position. But that, of course, depends on who replaces Scalia.”

Quote of the Month: Jeb Bush on Citizens United  

Despite being backed by the monumental Right to Rise super PAC, Jeb Bush said Monday he would “eliminate” the Supreme Court decision that paved the way for super PACs.”If I could do it all again I’d eliminate the Supreme Court ruling” Citizens United, Bush told CNN’s Dana Bash. “This is a ridiculous system we have now where you have campaigns that struggle to raise money directly and they can’t be held accountable for the spending of the super PAC that’s their affiliate.” — CNN, Feb. 8, 2016

Two Bills Introduced in N.H. to Protect Academic Freedom & Whistleblowers  

Two bills were recently put forward in the New Hampshire legislature in an attempt to buttress academic freedom and whistleblower protections for faculty members in New Hampshire’s public university system. The bills are:

  1. House Bill 1431 and
  2. House Bill 1561.

According to Kimberly Morin of the Manchester Political Buzz Examiner, “public universities came out against each of the bills. Apparently free speech in public universities is an issue to the Administration. University of New Hampshire was the most vocal against each piece of legislation. . . .”

Another First Amendment Blog: Meet Erica Goldberg 

Erica Goldberg

Erica Goldberg

It goes by the name of “In A Crowded Theater” and proclaims itself as dedicated to “Cutting through the rhetoric – in honor of our First, and best, Amendment.”

It is the work product of Erica Goldberg, a “Climenko Fellow at Harvard Law School; free speech enthusiast; extreme moderate; interested in the intersection of tort law and First Amendment doctrine, the tension between free speech values, issues involving social harms versus individual rights, legal writing, moral philosophy, media and free speech markets, indie films.”

Here are a few sample posts:

Leahy to receive First Amendment award

WASHINGTON - JUNE 29: Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) gestures during the second day of confirmation hearings for U.S. Supreme Court nominee Elena Kagan on Capitol Hill June 29, 2010 in Washington, DC. Kagan is U.S. President Barack Obama's second Supreme Court nominee since taking office. (Photo by Mark Wilson/Getty Images) Original Filename: GYI0060923701.jpg

Senator Patrick Leahy 

Jasper Craven over at VTdigger reports that Senator Patrick Leahy (D-VT) “will receive the 2016 Stephen Hamblett First Amendment Award in Boston on Friday in recognition of his advocacy of greater press freedoms, including work to strengthen the Freedom of Information Act and calls for court proceedings to be televised.”

“Leahy has sponsored nearly 20 bills and resolutions to improve government transparency, though much of that legislation has not been adopted as law.”

“Leahy has also called for cameras in courthouses as a means of increasing transparency and oversight and held hearings on the matter as chairman of the Senate Judiciary Committee. The award, bestowed by the New England First Amendment Coalition . . .”

 Flashback: FAN 16 — “The Move to Amend & Leahy’s Upcoming Senate Hearing” (May 21, 2014)

Take Cover: Comstock’s “Vampire” Returns 

Anthony Comstock’s “Vampire Literature: Confessions of a Government ‘Decency’ Censor” (The North American Review, 1891) is now available in Kindle format. Here’s how it begins:

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New & Forthcoming Books

Charb, Open Letter: On Blasphemy, Islamophobia, and the True Enemies of Free Expression (Little, Brown & Co., January 5, 2016)

  1. Joanna Williams, Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge (Palgrave Macmillan, February 17, 2016)
  2. Tom Slater, editor, Unsafe Space: The Crisis of Free Speech on Campus (Palsgrave Macmillan, May 11, 2016)
  3. Lawrence Siry, Regulation of Sexualized Speech in Europe and the United States (Hart Publishing, February 25, 2016)
  4. Annette Kuhn, Cinema, Censorship and Sexuality 1909-1925 (Rutledge, March 30, 2016)
  5. Guenter Lewy, Harmful and Undesirable: Book Censorship in Nazi Germany (Oxford University Press, July 1, 2016)
  6. Patricia L. Dooley, Freedom of Speech: Reflections in Popular Culture (Greenwood, Aug. 31, 2016)
  7. Eileen Horne, Zola and the Victorians: Censorship in the Age of Hypocrisy (Quercus Publishing, July 26, 2016)

New & Forthcoming Scholarly Articles

  1. Philippa Strum, “Speech and Democracy: The Legacy of Justice Brandeis Today,” SSRN (Jan. 20, 2016)
  2. Anthony Lauriello, “Reed v. Town of Gilbert & the Death of Panhandling Regulation,” Columbia Law Review (forthcoming 2016)
  3. Katherine P. McGrath, “Developing a First Amendment Framework for the Regulation of Online Educational Data: Examining California’s Student Online Personal Information Protection Act,” U.C. Davis Law Review (2016)
  4. Ronald Rotunda, “The Right of Dissent and America’s Debt to Herodotus and Thucydides,” Journal of International Studies (2015)
  5. Frank Pasquale, “Reforming the Law of Reputation,” Loyola University Chicago Law Journal (2015)

New & Notable Blog Posts

  1. Eugene Volokh, “Illinois bill would outlaw posting ‘video of a crime being committed’ ‘with the intent to promote or condone that activity,” The Volokh Conspiracy, Feb. 16, 2016
  2. Ruthann Robson, “Federal District Judge Enters Preliminary Injunction Against Center for Medical Progress, Anti-Abortion Group,” Constitutional Law Prof Blog, Feb. 9, 2016

News, Editorials, Op-eds & Blog Posts 

  1. Benjamin Raven, “Hillsdale approves social media policy, some wary of First Amendment restrictions,” Michigan Live, Feb. 16, 2016
  2. George Will, “First Amendment one vote away from real peril,” Orange County Register, Feb. 15, 2016
  3. Kelly Rocheleau, “First Amendment and safety questions continue for Mt. Pleasant’s panhandler ordinance,” Morning Sun News, Feb. 15, 2016
  4. Kathy Bergen, “A First Amendment fight in Florida,” Herald-Tribune, Feb. 14, 2016
  5. Susan Berry, “Purdue: First Amendment Protects ‘Outrageous’ Threats of Rape Against Pro-Life Students,” Breitbart, Feb. 13, 2016
  6. Raine Devries, “Avi Adelman on shaky ground with First Amendment defense after arrest,” Dallas Downtown Examiner, Feb. 13, 2016
  7. Gene Policinski, “Say it loud! The potential value of vulgarity!,” GazetteXtra, Feb. 11, 2016
  8. Tom LoBianco & Ashley Killough, “Jeb Bush would ‘eliminate’ Citizens United,” CNN, Feb. 8, 2016
  9. Christopher Dunn, “A First Amendment Clash Between Whistleblowing,” Legal Ethics, New York Law Journal, Feb. 4, 2016
  10. Gilad Edelman, “Heffernan v. Paterson & an Absurd First Amendment,” The New Yorker, Jan. 20, 2016

YouTube: Josh Blackmun on the 1st & 2nd Amends. & 3-D Printers

Professor Josh Blackmun speaking at a University of Colorado Law Federalist Society Chapter event.

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Town of Mocksville v. Hunter
  2. Miller v. Federal Election Commission
  3. Sun-Times Media, LLC v. Dahlstrom
  4. Rubin v. Padilla
  5. Hines v. Alldredge
  6. Yamada v. Snipes
  7. Center for Competitive Politics v. Harris
  8. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Electronic Arts, Inc. v. Davis
  6. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court is in recess. It’s next Conference is scheduled for this Friday, February 19, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

NEXT SCHEDULED FAN #99: Wednesday, February 24, 2016

LAST SCHEDULED FAN #97: “Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern?

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1 Response

  1. Brett Bellmore says:

    That obviously depends on what happens in the next year, whether Obama gets to replace Scalia, and whether a Democrat is elected President.

    Hasen is right, Scalia’s replacement has enormous civil liberties implications. At least two, perhaps three, specifically enumerated civil liberties will be largely abolished by a Court where Scalia’s replacement is chosen by a Democrat, and the next couple terms’ replacements are similar.

    By contrast, if Republicans hold the line, and a Republican is elected President, those same civil liberties will likely be preserved, and possibly extended over time.

    Of course, that’s not what Hasen means by saying Scalia’s replacement is important for civil liberties, as he follows the usual ‘liberal’ trend of not admitting civil liberties Democrats want to suppress are really civil liberties.