FAN 16.3 (First Amendment News) — Unanimous Judgments: The Roberts Court’s Record in First Amendment Free Expression Cases
Earlier today the Supreme Court handed down its ruling in Wood v.Moss. The vote was 9-0 and the opinion was authored by Justice Ruth Bader Ginsburg. In part, the Court held that
Government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the gov- ernment actor fears, dislikes, or disagrees with the views expressed. See, e.g., Police Dept. of Chicago v. Mosley . . . . The fundamental right to speak, however, does not leave people at liberty to publicize their views “ ‘whenever and however and wherever they please.’ ” United States v. Grace . . . In deciding whether the protesters have alleged violation of a clearly established First Amendment right, this Court assumes without deciding that Bivens v. Six Unknown Fed. Narcotics Agents, . . . , which involved alleged Fourth Amendment violations, extends to First Amendment claims . . . .
Accordingly, the Court ruled that the Secret Service agents were entitled to immunity; the Ninth Circuit was reversed. (See Professor Ruthann Robson’s comments on the case here.)
Beyond the qualified immunity point of this opinion, what is interesting is that in Wood the Court denied a First Amendment claim by a unanimous vote. When it comes to free expression First Amendment cases, the Roberts has consistently been unanimous in cases in which the claim was denied. In other words, the only time the judgment is unanimous in such cases is when a free speech claim is rejected. Wood is but the latest case in this string of First Amendment opinions.
Unanimous Judgments Denying First Amendment Expression Claim
- Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0] [3rd Cir., reversed & remanded]
- Davenport v. Washington Educ. Association (2007) [vote: 9-0] [Wash. S. Ct., vacated & remanded]
- New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0] [2nd Cir., reversed]
- Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0] [10th Cir., reversed]
- Locke v. Karass (2009) [vote: 9-0] [First Cir., affirmed]
- Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0] [8th Cir., affirmed in part, reversed in part & remanded]
- Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0] [Nevada S. Ct., reversed & remanded]
- Reichle v. Howards (2012) [vote: 8-0] [10th Cir., reversed & remanded]
- Wood v.Moss (2014) [vote: 9-0] [9th Cir., reversed]
Of the Roberts Court’s 32 free expression First Amendment opinions, 28% were decided by a unanimous vote and against the free expression claim being asserted.
→ See also: FAN 11.3: The Roberts Court on Free Speech, & Snapshots of 2013-2014 Term