FAN 21 (First Amendment News) — Looking Back on the 2013-2014 Term & on The Roberts Court’s Overall Free Speech Record
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 Epstein, Christopher 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:
- Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan
- Ronald Collins & David Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment
- Shaun McCutcheon, Outsider Inside the Supreme Court: A Decisive First Amendment Battle
- Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution
- Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform (2014)
- Richard Fossey & Todd A. DeMitchell, Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues (2014)
- 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]
→ Remember: This year we also lost a noted First Amendment figure with the passing of Professor George Anastaplo.
- [JR: 5-4] McCutcheon v. FEC
- [RBG: 9-0] Woods v Moss
- [SS: 9-0] Lane v. Franks (commentary)
- [JR: 9-0] McCullen v. Coakley
- [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)