FAN 63 (First Amendment News) CJ Roberts: Mr. First Amendment — The Trend Continues

He has the potential, almost from a running start, to bring a new day and a new era to the Supreme Court.Senator Arlen Specter (Sept. 26, 2005)
Chief Justice John Roberts (photo: Getty Images)

Chief Justice John Roberts (photo: Getty Images)

He is, by all measures, Mr. First Amendment. When it comes to free expression cases, Chief Justice John Roberts is the point man. Moreover, he solidifies that jurisprudential status with each passing year. In the process, we may well be witnessing the evolution of what could turn out to be an unprecedented chapter in the history of free-speech law in America — a welcome chapter to some and an unwelcome one to others. However that might be, one fact is undeniable: John Roberts is busy constructing a First Amendment edifice. Though it is a work still in progress, it is already towering over that of others on the Court.

This Term he has authored all of the free speech cases decided thus far by the Court — Elonis v. United States  (8-1, statutory grounds) and Williams-Yulee v. The Florida Bar (5-4). And then there is truth of the tallies:

Of course, the Chief Justice’s overall record has a few glitches, or what some might deem breaches of faith. For example, strong as his First Amendment credentials are when it comes to sustaining rights, he failed on that score in two important cases: Holder v. Humanitarian Law Project (per JR, 5-4, 2010) and Garcetti v. Ceballos (per AK, 5-4, 2006, JR joining majority). And then there was his opinion for the Court in Morse et al. v. Frederick (5-4, 2007). Finally, there was his vote Brown v. Entertainment Merchants Association (7-2, 2011) wherein he joined Justice Alito’s concurrence and thereby declined to join the First Amendment majority opinion by Justice Scalia. And while cases such as Elonis v. United States (8-1) reveal his tendency to dispose of free speech cases on statutory grounds when possible and in ways consistent with the doctrine of constitutional avoidance, others cases such as  Citizens United v. Federal Election Commission (AK, 5-4, 2010) run contrary to that position. (More could be said about all of these cases and yet other others, but I will reserve further commentary for another time.)

Roberts & Rehnquist: Stark Contrast 

Chief Justice William Rehnquist

Chief Justice William Rehnquist

What to make of it all? Here is how Paul M. Smith (a noted appellate advocate who successfully argued the Brown case) answers that question: “While it is clear that Chief Justice Roberts has become the most important Justice in First Amendment cases, surpassing even Justice Anthony Kennedy, he has shown a willingness to deny protection to speech he disapproves of. Examples include Holder v. Humanitarian Project, Brown v. Entertainment Merchants Ass’n, and Morse v. Frederick. But, that said, Chief Justice Roberts has certainly come a long way from the viewpoint of his mentor Justice (and later Chief Justice) William Rehnquist, who was far less likely than more recent conservatives to vote to invalidate laws under the First Amendment.”

Paul M. Smith

Paul M. Smith

To illustrate Mr. Smith’s comparative point, consider the fact that during his 33 years on the Court, first as an Associate Justice and then as the Chief Justice, Rehnquist authored 71 freedom-of-expression opinions, 29 of which were majority opinions. The vast majority of those opinions were hostile to the free-speech claims raised. And as Professor Geoffrey Stone has observed: “In his more than 30 years on the Supreme Court, Rehnquist participated in 259 decisions involving these freedoms. In these cases, Rehnquist voted to support the 1st Amendment claim only 20 percent of the time.”

“Strong free expression principles”

While some maintain that John Roberts’s opinions primarily serve corporate deregulatory interests (see below), the fact is that there is a bounty of doctrinal law and powerful language in many of those opinions that lawyers have tapped into in any variety of free speech cases.

Robert Corn-Revere

Robert Corn-Revere

According to Robert Corn-Revere, an experienced First Amendment lawyer: “The Chief Justice has espoused strong free expression principles that have had the effect of protecting even speech some consider to be at the fringe of the First Amendment concern – including  fetish videos and speech by hateful religious zealots. And in McCutcheon he observed that ‘[i]f the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.’  Those who criticize the application of these principles to campaign laws because they are ‘deregulatory’ simply are engaging in a different sort of result-oriented reasoning. They don’t want the First Amendment to limit those speech regulations they favor.  Chief Justice Roberts’ record may not be perfect (given decisions like MorseGarcetti, and Holder), but it certainly is strong.”

Selected Commentaries:

  1. Sam Baker, “John Roberts: First Amendment Champion*,” National Journal (June 3, 2015)
  2. David H. Gans, “Roberts at 10:The Strongest Free Speech Court in History?”, Constitutional Accountability Center (May, 2015)
  3. Lincoln Caplan, “The Embattled First Amendment,” The American Scholar (Spring 2015)
  4. David H. Gans, “The Roberts Court Thinks Corporations Have More Rights Than You Do,” The New Republic (June 30, 2014)
  5. Ronald Collins, “The Roberts Court and the First Amendment,” SCOTUSblog (July 9, 2013)
  6. Ronald Collins, “Exceptional Freedom-The Roberts Court, First Amendment, and the New Absolutism,” Albany Law Review (2013)
  7. Adam Liptak, “Study Challenges Supreme Court’s Image as Defender of Free Speech,” New York Times (January 7, 2012)
  8. Erwin Chemerisnky, “Not a Free Speech Court,Arizona Law Review (2011)
  9. David L. Hudson, Jr., “Chief Justice Roberts and the First Amendment,” First Amendment Center (April 22, 2011)

New Hampshire High Court: Parking Meter “Robin Hoods” Protected under FA

Don’t follow leaders, watch the parking metersBob Dylan

The case is City of Keene v. Cleaveland, et al (N.H., June 9, 2015). The opinion for the Court was authored by Associate Justice James P. Bassett.

Justice James Bassett

Justice James Bassett

Facts: “The City employs [parking enforcement officers (PEOs] to enforce motor vehicle parking laws and regulations in Keene. The PEOs patrol downtown Keene on foot and in marked vehicles, monitoring parking meters and issuing parking tickets. In December 2012, the respondents began protesting parking enforcement in Keene. On an almost daily basis, the respondents followed closely behind the PEOs, identifying expired parking meters and filling the meter before a PEO could issue a ticket, a process referred to by the respondents as a “save.” When the respondents “save” a vehicle, they leave a card on the vehicle’s windshield that reads: ‘Your meter expired! However, we saved you from the king’s tariff!’ The respondents also: videotaped the PEOs from a close proximity; called the PEOs names such as ‘f*****g thief,’ ‘coward,’ ‘racist,’ and ‘b***h’; criticized the PEOs for issuing tickets; encouraged the PEOs to quit their jobs; and waited for the PEOs during their breaks, including waiting outside restrooms. The respondents testified that they engage in these activities to protest parking enforcement because they believe that parking is not a criminal act, and that parking tickets are a ‘threat against [the] people.'”

Held: “[W]e note that we share the trial court’s skepticism as to whether a tortious interference claim can exist when private citizens engage in protest of the government. However, we need not decide whether a viable tortious interference claim can exist under the circumstances present in this case because we agree with the trial court that holding the respondents liable for tortious interference based upon their alleged activities would infringe upon the respondents’ right to free speech under the First Amendment. . . .”

7256167_G“Because we hold that the First Amendment bars the City from pursuing its claim for tortious interference with contractual relations, we also conclude that the First Amendment bars the City from pursuing its claim that the respondents are liable for conspiring to commit the very same tort. . . .”

“In light of the City’s allegations that the challenged conduct threatens the safety of the PEOs, pedestrians, and the motoring public, and given the testimony of the PEOs at the hearing, we hold that the trial court erred when it failed to consider the particular factual circumstances of the case and whether an injunction should issue based upon the governmental and policy interests asserted by the City. . . . Accordingly, we vacate the trial court’s denial of the City’s request for injunctive relief, and remand for the trial court to address the issue of whether the governmental interests and factual circumstances asserted by the City in its petition are sufficient to warrant properly tailored injunctive relief.”

Counsel for Respondents: Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the brief and orally).

Amici: Nixon Peabody LLP of Manchester (Anthony J. Galdieri on the brief), and New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette on the brief), for New Hampshire Civil Liberties Union, as amicus curiae.

California Lawmakers: Reproductive Fact Act

This from a WND report by Bob Unruh: “California’s Democrat-controlled legislature previously became the first state to bar counselors from helping minors be healed of unwanted same-sex attractions. Counselors are allowed only to promote homosexuality to minors. Now, California Democrats, with AB 775, want to require crisis pregnancy centers, including those that are run by faith-based organizations, to actively promote abortion. New York already tried it and was slapped down by the courts.” See Evergreen Association v. City of New York (2nd Cir., 2014)

See also Samantha Lachman, “California Assembly Passes Bill Banning Crisis Pregnancy Centers From Misleading Patients,” Huffington Post, May 26, 2015: “The California Assembly passed legislation Tuesday that would require faith-motivated crisis pregnancy centers to provide comprehensive information about reproductive health care options, including abortion.”

“The bill, known as the Reproductive Fact Act, would require pregnancy centers to post notices saying that reproductive health services, including abortion, are available to pregnant women in the state. Pregnancy centers also would have to disclose whether they lack a medical license. The bill passed on a party-line vote, with Republicans objecting on the grounds that it would unconstitutionally compel government speech for the state’s 167 centers.”

Unprotected: Cellphone video of U.S. senator’s bedridden wife in a nursing home

This news report from the Associated Press: “A Mississippi judge on Monday rejected an argument that a blogger had a First Amendment right to shoot a cellphone video of a U.S. senator’s wife while she was bedridden with dementia in a nursing home. The defense attorney for blogger Clayton Kelly made the free-speech argument during pre-trial motions Monday. Clayton Kelly of Pearl is charged with conspiracy, attempted burglary and burglary”.

“‘I think a lot of this is political. I think my constitutional rights should be respected,’ Kelly, whose blog was called Constitutional Clayton, told reporters outside the Madison County Courthouse.. . .”

“Images of Rose Cochran appeared online briefly during the 2014 election, during a tough Republican primary. Investigators say Kelly was one of several people who conspired to produce the video suggesting U.S. Sen. Thad Cochran was having an affair. . . “

See also Kelly pleads guilty to conspiracy in Cochran photo case,” Jackson Clarion Ledger‎, June 8, 2015

Mobile Monument Project 

This from the Thomas Jefferson Center for the Protection of Free Expression:

The Mobile Monument Project involves transforming a standard issue 20-foot ISO shipping container into an elegant and engaging representation of our precious First Amendment values.

UnknownThe exterior features more than 400 sq ft of “chalkboard” space where visitors can express themselves however they wish. On the inside, a beautiful open gallery space provides a backdrop for rotating exhibits, performances, installations—the sky’s the limit!
In short, the Mobile Monument is an interactive exploration of what it means to enjoy and exercise our right of free expression. And because it’s so portable, the Mobile Monument takes this important message straight to the people. Once completed, the Monument can go almost anywhere:
  • College Campuses
  • State Capitols
  • Public Parks
  • Festivals
  • Community Events
  • Concerts

See video here

DONATIONS NEEDED TO FUND PROJECT: $15,000 goal (go here to contribute)

RelatedEugene Volokh Joins TJC Board of Trustees

David Strauss: “Toil and Trouble in Media-Land”

Professor David Strauss

Professor David Strauss

Over at The New Rambler Professor David Straussreviews Amy Gajda’s The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (2015). Here are a few excerpts:

“The Obama Administration is said to have prosecuted more people for leaking classified information than all previous administrations combined. Journalists have noticed. ‘The Obama Administration is the greatest enemy of press freedom in a generation,’ according to James Risen, the New York Times investigative reporter. Risen’s language is unusually strong, but the general theme is familiar among journalists. In a typical comment, Bob Schieffer, a CBS Washington correspondent, is quoted as saying: ‘Whenever I’m asked what is the most manipulative and secretive administration I’ve covered, I always say it’s the one in office now . . . . This administration exercises more control than George W. Bush’s did, and his before that.’”

“It seems unlikely that this Administration is just more authoritarian or paranoid than the one before it (which was in turn more so than the one before it, and so on), or that this President and Attorney General harbor a perverse desire to antagonize the New York Times and CBS. The much more plausible explanation is that the world has changed, and government officials have responded by becoming less tolerant of practices they might have lived with before. . . .”

What are some of the changes that Strauss thinks explains this? He lists four:

  1. “The first change, inevitably, is the technology.”
  2. The second change is the mass availability of information on the Internet, information that was once difficult to obtain.
  3. The third change is in the nature of “the press.” “Today, of course, a self-anointed Ellsberg does not have to submit himself to the judgment of editors like [those of the New York Times or the Washington Post]. Someone who has government secrets can propagate them, worldwide, more or less immediately, either without any intermediary or with an intermediary who will not feel the same obligation to try to take the government’s interests into account.”
  4. The fourth change is “the economics of the media industry put pressure on everyone to cater to the lowest denominator.”

The main problem in all of this, he adds, is not such much the law. “The problem is whether the media themselves will have the incentives and the capacity to do the job that they must do, and ought to do, in a free society. There is only so much the law can do about that.”

Campus Free-Speech Watch

As the the stories and commentaries below (all recent ones) indicate, the battle for free speech on college campuses is proving, yet again, to be the biggest one of the year. What is also noteworthy is the very high success rate of challenges to campus speech codes . . . and yet many remain on the books.     

  1. College Attempts to Censor Student Columnist: Q&A with Andrew Breland,” TheFireorg, June 8, 2015
  2. Robert Soave, “Campus Censorship is The Feds’ Fault,” The Daily Beast, June 6, 2015
  3. Benjamin Wermund, “Student sues Blinn College, says ‘free speech zone’ violates First Amendment,” Chron, June 6, 2015
  4. Ray Nothstine, “Boise State University to Pay $20,000 to Pro-Life Group After Backtracking on Censorship,” CP US, June 6, 2015
  5. George F. Will, “A summer break from campus muzzling,” Providence Journal, June 5, 2015
  6. BSU changes policy, drops lawsuit with campus group,” Associated Press, June 4, 2015
  7. Greg Piper, “Democratic lawmaker defends anti-Christian campus policies at hearing,” The College Fix, June 2, 2015
  8. Brenda Schory, “Waubonsee paid $132K to settle free-speech lawsuit,” My Suburban Life, June 5, 2015
  9. Donald A. Downs, “Shouting down campus speakers,” Philly.com, June 2, 2015
  10. Another university gets ‘green light’ for First Amendment-friendly campus,” News Now, May 29, 2015

Congressman Louie Gohmert on First Amendment Rights in Universities & Schools (June 2015: re statement made at House Judiciary Subcommittee on Constitution and Civil Justice Hearing)

Group Launches Litigation Campaign to Challenge Campus Speech Codes,” Concurring Opinions, FAN 21.1, Jul2 2, 2014

Seinfeld: “I don’t play colleges. They’re so PC.”

This from a Washington Post news story by Justin Wm. Moyer: “Jerry Seinfeld himself has taken a stand — against political correctness on campus. The 61-year-old comedian told an ESPN interlocutor that he avoids performing at universities because of trigger warnings, speech codes and other First Amendment umbrage.”

“‘I don’t play colleges,’ Seinfeld said on The Herd with Colin Cowherd. ‘. . . I hear a lot of people tell me, ‘Don’t go near colleges. They’re so PC.’”

Flashback: Politically Incorrect: “Racist” jokes – David Spade, Sarah Silverman & Bill Maher

Check out this YouTube video of an old Bill Maher show — really quite good back-and-forth.

* * * * *

Journalists, Jails & the First Amendment

“For the first time we have assembled, in one place, virtually all the journalists who’ve gone to jail in the United States for doing a vital part of their job. . . Tonight we’re going to hear their stories.” — John M. Donnelly (See video here.)

* * * * *

Senator Cruz & Shaun McCutcheon

Senator Cruz & Shaun McCutcheon

Shaun McCutcheon — Round ‘n About

→ Luke Mulins, “Shaun McCutcheon Blew Up Campaign-Finance Law and Became a GOP Hero. Then He Set His Sights on Paris Hilton,” The Washingtonian, June 7, 2015

New & Notable Blog Posts

New & Forthcoming Scholarly Articles

  1. Jessica Bulman-Pozen & David E. Pozen, “Uncivil Obedience,” Columbia Law Review(2105)
  2. Daniel E. Herz-Roiphe, “Stubborn Things: An Empirical Approach to Facts, Opinions, and the First Amendment,” Michigan Law Review: First Impressions (2015)
  3. Eugene Volokh, “Gruesome Speech,” Cornell Law Review (2015)
  4. Mohamed H. Aziz , “Counter Terrorism Measures via Internet Intermediaries: A First Amendment & National Security Dilemma,” Journal of Law and Cyber Warfare (forthcoming 2015)
  5. Jordan M. Singer, “Judges on Demand: The Cognitive Case for Cameras in the Courtroom,” Columbia Law Review: Sidebar (2015)
  6. John Korevec, “‘McDonald Does Dallas’: How Obscenity Laws on Hard-Core Pornography Can End the Nation’s Gun Debate,” Southern California Law Review (2015)
  7. Paul J. Larkin Jr., “Revenge Porn, State Law, and Free Speech,” Loyola Los Angeles Law Review (2014)

News, Op-eds, Commentaries & Blog Posts

  1. Tim Cushing, “New Mexico Judge Says First Amendment Is Subservient To The ‘Dignity Of The Court’,” TechDirt, June 8, 2015
  2. George Will, “Campaign-Finance Reformers’ First Amendment Problem,” National Review Online, June 6, 2015
  3. Gene Policinski, “Inside the First Amendment — A reminder to remember — rededicating the Journalists Memorial, The Morning Sun, June 6, 2015
  4. Mike Goodwin, “Supreme court dodges First Amendment issue, but still puts limits on criminalizing speech,” R Street, June 5, 2015
  5. David Keating, “Another View: Demand for nonprofits’ donor lists violates First Amendment,” Sacramento Bee, June 5, 2015
  6. Charlie Butts, “Porn lawyers claim First Amendment right to hire kids,” NewsNow, June 6, 2015
  7. Ruthann Robson, “Supreme Court Dodges First Amendment Issue in Facebook Threats Case,” Constitutional Law Prof Blog, June 1, 2015
Professor Elliott Visconsi.

Professor Elliott Visconsi

Notre Dame Online Video Lecture Series on First Amendment Law

The Notre Dame Office of Digital Learning offers an informative and engaging overview of First Amendment free expression law in a series of video lectures (or “modules” as they are tagged). The lectures are given by Professor Elliott Visconsi.

  1. Why the First Amendment? 
  2. Arguing Free Expression
  3. Rise of Individually Centered First Amendment
  4. Sedition & Incitement 
  5. What is Speech?
  6. Literariness
  7. Digitality

New YouTube Posts

  1. Alton man wins free speech case before NH Supreme Court,” WMUR-TV, June 9, 2015
  2. Hannity, “Pamela Geller, imam debate threats to free speech,” Fox News, June 7, 2015

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 6-09-15]

Cases Decided 

  1. Elonis v. United States (decided: June 1, 2015) (8-1 per Roberts)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)

Review Granted & Cases Argued

  1. Reed v. Town of Gilbert (argued 1-12-15)
  2. Walker v. Texas Division, Sons of Confederate Veterans (argued 3-23-15)

Pending Petitions*

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
  3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
  5. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)
  6. Walker-McGill v. Stuart

Review Denied*

  1. O’Keefe v. Chisholm
  2. King v. Christie
  3. Apel v. United States 
  4. Dariano v. Morgan Hill Unified School District
  5. The Bronx Household of Faith v. Board of Education of the City of New York 
  6. Arneson v. 281 Care Committee
  7. Kagan v. City of New Orleans
  8. ProtectMarriage.com-Yes on 8 v. Bowen
  9. Clayton v. Niska
  10. Pregnancy Care Center of New York v. City of New York 
  11. City of Indianapolis, Indiana v. Annex Books, Inc.
  12. Ashley Furniture Industries, Inc. v. United States 
  13. Mehanna v. United States
  14. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  15. Vermont Right to Life Committee, et al v. Sorrell

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.   

LAST SCHEDULED FAN POST, #62: “Federal Judge Blasts Liberal Assault on the First Amendment

NEXT SCHEDULED FAN POST, #64: Wednesday, June 17, 2015

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2 Responses

  1. berkitron says:

    I have a slightly less sanguine view of Roberts because both Holder and Williams-Yulee are the two SCOTUS cases in which strict scrutiny is not, in fact, fatal. While he’s undoubtedly been strong in many speech cases – even outside of the traditional pro-corporate & CFR world – those two cases should strike fear deep into the heart of any 1A litigator. Taking into account the government wins in those two strict scrutiny cases, plus the absolute unprincipled, unbounded mess that is Morse, this gloss gives the CJ a bit more credit than I’m comfortable with.

  2. Howard Wasserman says:

    There is a confounding factor here, in that Roberts wields the assignment power and keeps assigning these cases to himself. So it is true, and great, that Roberts is generally signing onto the speech-protective position in these cases. But so did Earl Warren. The difference is that Warren kept giving the cases to Brennan, while Roberts is keeping them for himself. Roberts could just as easily have given more of these cases to Kennedy.