Does the Roberts Court Have a First Amendment Agenda?
Commentators sometimes study the Supreme Court’s certiorari grants over short periods to discern patterns that suggest an agenda. There are different types of agendas. Some Justices may have a substantive agenda to expand, contract, or change the approach to an area of constitutional doctrine or other federal law. A different agenda might be to clarify or further develop an area of law, but not have a particular direction in mind. That is, the goal simply may be clarity.
Sometimes an agenda may be the product of external events, such as the Court’s foray into limits on executive powers growing out of government actions to address terrorist threats after 9/11 (though, as Fred Schauer argues, the Court’s approach to case selection does not always mirror the nation’s governance priorities). At other times, it might occur internally. It would not be wild to suggest that a majority of the Rehnquist Court consciously wanted to alter the landscape of federalism by reviewing several Commerce Clause and state sovereignty cases over the span of just a few terms.
Recently, there is evidence that the Roberts Court has some sort of First Amendment agenda, but it’s not at all clear what that agenda is. Three times in the last two terms, the Supreme Court has granted certiorari to review a First Amendment case in which the government has argued for a new exception to the presumptive rule against government regulation of speech based on its content. Last term, the Court heard United States v. Stevens, 130 S. Ct. 1477 (2010), a challenge to a conviction under a federal law prohibiting the knowing creation, sale, or possession of a depiction of animal cruelty for commercial gain. This term, the Court has already heard argument in Snyder v. Phelps, a case arguing for an exception for emotionally harmful protests outside of funerals, and Schwarzenegger v. Entertainment Merchants Association, a case suggesting a possible exception for regulation of the sale of extremely violent video games to minors.
Though this is an oversimplification, it is generally still valid to describe basic First Amendment analysis as establishing a presumption against government regulation based on the content of the speech (content can include viewpoint, subject matter, and arguably other categories). Exceptions to the general presumption exist for government regulation of “fighting words,” obscenity, child pornography, and threats, as well as altered analytical frameworks for fraud in commercial speech, libel against public figures, and incitement to imminent unlawful conduct. There are continual attempts by government to expand or push the edge on these categories of unprotected or less protected speech, but Courts with vastly different ideological compositions typically resist efforts to carve out exceptions. As observe in the Third Circuit’s opinion in Stevens, it has been over 25 years since the Court has recognized a new categorical exception to the content discrimination rule.
Given that resistance, the Court’s decisions to review Stevens, Snyder, and Entertainment Merchants in such a short time frame are certainly noteworthy. Perhaps the presence of these cases on the Court’s docket signals the interest of at least some current Justices in testing the rigidity of the content discrimination doctrine and expanding the number of exceptions. We are operating on incomplete information at this point, but the one data point we have contradicts that thesis. In Stevens, the Court (in an opinion written by Chief Justice Roberts) rejected the government’s claim for an exception to the content discrimination rule for depictions of animal cruelty, overturning Stevens’s conviction 8-1. At least four Justices voted to hear the case, yet only Justice Alito would have created a new First Amendment exception. Although the Court invalidated the statute on its face on First Amendment overbreadth grounds, the Court quite explicitly rejected the federal government’s invitation to create an animal cruelty exception.
Another possibility is that the Court is acting in an error correcting fashion to send a message to lower courts that the content discrimination rule remains solid, and that attempts to create new categorical exceptions will be rebuffed. That is, the Court could have taken these cases to announce its continued stinginess in recognizing exceptions to the content discrimination rule. The error correction thesis is weakened by the fact that all three federal appellate courts in these cases already rejected claims to create new exceptions to First Amendment protection. In Stevens, the Third Circuit, sitting en banc, had already thrown out Stevens’s conviction and the Court simply affirmed. Likewise, in Snyder v. Phelps, the Fourth Circuit overturned a multi-million dollar tort judgment against the funeral protestors. In Entertainment Merchants, the Ninth Circuit struck down the California statute as content-based and applied the traditional strict scrutiny test, rejecting the state’s claim for a new quasi-obscenity exception for violent content in video games sold to minors. This hardly seems like a scenario in which the Supreme Court would feel the need to police the lower courts’ First Amendment activism.
Whatever the Court’s agenda, the prospect of expanding piecemeal exceptions to the First Amendment’s prohibition of content discrimination is somewhat alarming. Though First Amendment doctrine is already highly balkanized, the content discrimination rule still does important work by prophylactically constraining government attempts to squelch speech. Moreover, the recognition of more exceptions would likely embolden governments to ask for even more. It is not that content discrimination operates as a perfect doctrinal tool, but it creates strong disincentives for the state to be blatantly discriminatory (on the other hand, as I have argued, the rigidity of the rule can create unintended anti-speech consequences, such as the drafting of overbroad, content-neutral laws that are illicitly designed to get at a particular message).
In any event, keep an eye on cert grants in First Amendment cases over the next few years. It could get interesting.