FAN 64 (First Amendment News) More on the Roberts Court & the First Amendment — the Women Justices
How is First Amendment freedom of expression law being shaped by the current Court? One way to answer that question is to focus on the Justices themselves and on their assignments, voting records, and voting alignments. Mindful of such concerns, I plan to do a series of posts on the Roberts Court. When complete, I hope to prepare a summary and analysis of the Roberts Court and its record in this area of the law.
In this second installment, and following my profile of Chief Justice John Roberts, I continue by way of some facts and figures about the contributions of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Here are a few for starters:
- Though the Roberts Court has handed down 39 First Amendment free expression opinions, it has rendered only 17 during the tenure of all three of the Court’s female Justices.
- Justice Sotomayor took her seat in August of 2009, and the first First Amendment free expression case she voted on was Citizens United v. FEC (2010) (5-4, joined dissent). Since her time on the Court the Justices have rendered 23 First Amendment free expression opinions.
- Justice Kagan took her seat in August of 2010, and the first First Amendment free expression case she voted on was Snyder v. Phelps (2011) (8-1, joined majority). Since her time on the Court the Justices have rendered 17 First Amendment free expression opinions (she did not participate in 2 of those cases).
Now onto the tallies in First Amendment free expression cases:
Number of Majority/Plurality Opinions
- Justice Ginsburg: 3 out of 39 [Roberts = 13 & Kennedy & Scalia 5 each during same period]
- Justice Sotomayor: 2 out of 23 [Roberts = 9 & Kennedy = 4 during same period]
- Justice Kagan: 0 out of 15* [Roberts = 6 & Kennedy = 3 during same period] [*EK did not participate in 2 of the 17 cases decided during her tenure]
Number of Separate Opinions
- Justice Ginsburg: 5 out of 39 (2 dissenting opinions, 1 dissenting & concurring in part & 2 concurring opinions)
- Justice Sotomayor: 2 out of 23 (2 concurring opinions)
- Justice Kagan: 2 out of 15 (2 dissenting opinions) [*EK did not participate in 2 of the 17 cases decided during her tenure]
Total Number of Opinions by RBG, SS & EK
- 14 (includes total majority & separate opinions) [By contrast: CJ Roberts alone has authored 13 majority/plurality opinions]
Justice Ginsburg’s majority opinions
- Christian Legal Society v. Martinez (5-4, 2010) (1-A claim denied)
- Golan v. Holder (6-2, 2012) (1-A claim denied)
- Wood v Moss (9-0, 2014) (1-A claim denied)
Justice Sotomayor’s majority opinions
- Milavetz, Gallop, & Milavetz v. United States (9-0, 2010) (1-A claim denied)
- Lane v. Franks (9-0, 2014) (1-A claim sustained)
Thus, in the 15 such cases in which all the women Justices participated, they authored only one majority opinion (Lane v. Franks). (Justices Ginsburg and Sotomayor participated in 17 such cases during the same period and the number of majority remained the same.)
Record re 5-4 Majority/Plurality Opinions: Of the eleven 5-4 Roberts Court majority or plurality opinions in First Amendment free expression cases, only one was authored by any of the Court’s female members (Justice Ginsburg). There were six 5-4 judgments during Justice Sotomayor’s tenure, and four such judgments during Justice Kagan’s tenure.
(CJ Roberts leads in this area with 5 such opinions followed by Justices Kennedy and Alito with two apiece.)
Justice Ginsburg’s separate opinions
- Williams-Yulee v. The Florida Bar (5-4, concurring & dissenting in part, 2015)
- Reichle v. Howards (8-0, concurring, 2012)
- Davis v. Federal Election Commission (5-4, concurring & dissenting in part, 2008)
- Ysursa v. Pocatello Educational Association (7-2, concurring & dissenting in part, 2009)
- Beard v. Banks (6-2, dissenting, 2006)
Justice Sotomayor’s separate opinions
- Knox v. Service Employees International Union (7-2, concurring in judgment, 2012)
- Doe v. Reed (8-1, concurring, 2010)
Justice Kagan’s separate opinions
- Harris v. Quinn (5-4, dissenting, 2014)
- Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (5-4, dissenting, 2011)
→ Elena Kagan as Government Lawyer: Citizens United v. FEC (2010) was reargued by then Solicitor General Elena Kagan. She was also on the government’s brief in United States v. Stevens (2008) and in its brief in Holder v. Humanitarian Law Project (2010), among other cases.
In her early years as a law professor, Elena Kagan wrote almost exclusively on the First Amendment. There are indications in those writings that her views on government regulation of speech were closer to the Supreme Court’s more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace. — Adam Liptak, New York Times, May 15, 2010
→ Elena Kagan’s pre-Court First Amendment articles
- “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” 63 U. Chi. L. Rev. 413 (1996);
- “When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints,” 29 U. Cal. Davis L. Rev. 957 (1996)
- “Regulation of Hate Speech and Pornography After R.A.V.,” 60 U. Chi. L. Rev. 873 (1993); and
- “The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion,” 1992 Sup. Ct. Rev. 29.
My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view . . . . — Eugene Volokh, Volokh Conspiracy, May 10, 2010
Voting Alliance Among the Women Justices
In the 15 First Amendment freedom of expression cases in which all three of the women Justices participated, they voted differently in the outcomes of two cases:
- Sorrell v. IMS Health Inc. (2011) (SS in majority, RBG & EK in dissent)
- Knox v. Service Employees International Union (2012)
** Williams-Yulee v. The Florida Bar (2015) (SS & EK join plurality, RBG concurring & dissenting in part)
Note: During that same period, Justices Ginsburg and Sotomayor sat on 17 such cases, and always voted the same as to the judgment in the case.
First Amendment Profiles
- Rights claim denied in all three of the cases in which Justice Ginsburg authored a majority opinion
- Unanimous Judgments: Justice Sotomayor has authored majority opinions (2) only in cases where the vote was 9-0
- Concurring opinion: When Justice Sotomayor authored a separate opinion, it was only in a concurrence
- Dissenting opinion: Whenever Justice Kagan authored separate opinions, they were always in dissents
→ Note: I will be saying more about the Roberts Court and the First Amendment in forthcoming FAN posts and also on SCOTUSblog.
Proposal: Establish First Amendment Centers on College Campuses
“[I] t is time for defenders of free speech to take more aggressive measures to curb censorship on our nation’s campuses. We cannot simply keep talking about the crisis. We need to tackle it aggressively. One essential measure needed to tackle the crisis involves the creation of First Amendment centers at public universities all around America. Such centers would focus on eight measures, four of which are corrective, four of which are preventive.” The first four of his proposed measures are listed below:
- Auditing student affairs divisions to ensure viewpoint neutrality.
- Auditing student affairs divisions to ensure respect for freedom of association
- Audit student affairs divisions to ensure neutrality in student group recognition
- Audit student affairs divisions to monitor speech prosecutions
Mr. Adams discusses each of the proposed measures in his article. He will list further recommendations in a future post.
Campus Free-Speech Watch
- Justin Wm. Moyer, “Jerry Seinfeld: Political correctness and… yada yada yada… colleges,” Hampton Roads.com, June 15, 2015
- Catherine Sevcenko, “College free speech zones violate First Amendment,” Express News, June 14, 2015
- Stephen Kruiser, “Awash In Feelings, PC Thought Police Spend Week Proving Seinfeld Right,” Town Hall, June 14, 2015
- Ali Abunimah, “Salaita firing lands Univ. of Illinois on AAUP censure list,” The Electronic Intifada, June 14, 2015
- Christopher Placek, “Was Oakton instructor’s email a threat or free speech?,” Daily Herald, June 14, 2015
- Bill Schackner, “Free-speech group criticizes Cal U email policy,” Pittsburgh Post-Gazette, June 13, 2015
- Editorial, “Our View: Thumbs-down to Restriction of First Amendment rights,” Kane County Chronicle, June 12, 2015
- Matt Lamb, “Conservative and Libertarian Messages Require High ‘Security Fees’ On Campus,” The College Fox, June 10, 2015
- Dave Huber, “Yet another: Oregon State president doesn’t get the First Amendment,” The College Fix, June 1, 2015
→ See also FIRE’s Media Coverage page here
Headline: “Protesters outside pet shop raise First Amendment questions”
This news report filed by Vanessa Pang for KCCI 8 (Ames, Iowa): “The city of Ames is taking a deeper look at its rules regarding First Amendment rights after a local business owner says protesters are a safety concern.”
“Several people stand outside Dyvig’s Pet Shoppe in downtown Ames on weekends with signs protesting puppy mills.”
“Police said it’s their First Amendment right, but the owner says it’s bad for business and a safety concern. The protesters are a part of Bailing out Benji, a group against puppy mills. . . .”
→ See video here.
New Balancing Test Urged for Free Speech Cases
This article develops a theory for balancing free speech against other express and implied constitutional values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases, involving competing rights, judges should examine 1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; 2) whether the restricted expression has been historically or traditionally protected; 3) whether a government policy designed to benefit the common good weighs in favor of the regulation; 4) the fit between the disputed speech regulation and the public end, and 5) whether some less restrictive alternative exists for achieving it.
Recent Roberts Court’s free speech jurisprudence has gone in the opposite direction, becoming increasingly formalistic. Cases dealing with violent video games, cruelty to animals, aggregation of campaign financing, and lies about military achievements have applied a categorical approach that is inadequately contextual. The recently developed categorical test undervalues important normative considerations and a variety of free speech doctrines.
On the normative side, free speech is not a separate value but one that fits within a sophisticated structure of constitutional law. After developing an ethical theory about the value of speech to a representative democracy and discussing it in the context of several balancing doctrines, this Article applies the framework to campaign financing legislation and copyright doctrine.
Forthcoming Book on Censorship
Coming this January Bloomsbury Academic Press will publish Censorship Moments: Reading Texts in the History of Censorship and Freedom of Expression, which is edited by Geoff Kemp. Here is the abstract:
Censorship in varying forms has been part of human experience for 2,500 years and has proved itself to be a recurring presence for political thought, whether as active repression, a shaping context for expression, or as itself a subject for analysis and argument. From the death of Socrates to the fatwa against Salman Rushdie, attempts to silence thinkers and writers have provoked passionate and often penetrating responses that speak of their historical moment.
Censorship Moments will provide short, accessible and stimulating access to a variety of these responses. Each chapter will couple a short textual ‘moment’ of writing on censorship and freedom of expression by a past writer with analysis by an expert current scholar. The book’s main focus is the public political dimension of censorship, in its relation to political authority and political thought, while also reflecting on the porous boundary to literature and other areas such as law and the media.
Some of the 21 Contributors include:
- John Christian Laursen, “Censorship from Rulers, Censorship from Book Piracy: The Strategies of Immanuel Kant”
- Robert W.T. Martin, “The ‘Censorship of Public Opinion’: James Madison, the Sedition Act Crisis and Democratic Press Liberty”
- Gregory Claeys, “Mill and Censoriousness”
- Sue Curry Jansen, “‘Every Idea is an Incitement’: Holmes and Lenin”
- Stephen Ingle, “Orwell: Liberty, Literature and the Issue of Censorship”
- Thomas Meyer, “Sphinx with a Secret: Leo Staruss’s Persecution and the Art of Writing“
- Katherine Smits, “The Silencing of Women’s Voices: Catharine MacKinnon’s Only Words“
Forthcoming in Paperback
- Charles Slack, Liberty’s First Crisis (Grove Press, paperback, March 8, 2016)
Forthcoming Scholarly Articles
- Robin Feldman, “Federalism, First Amendment & Patents: The Fraud Fallacy,” Columbia Science and Technology Law Review (forthcoming 2015)
- Mohamed H. Aziz, “Counter Terrorism Measures via Internet Intermediaries: A First Amendment & National Security Dilemma,” Journal of Law and Cyber Warfare (forthcoming 2015)
Notable Blog Posts
- Jonathan Peters, “Why the First Amendment didn’t save a Mississippi blogger,” Columbia Journalism Review, June 15, 2015
- Fred Campbell, “New Net Neutrality Order Is a Nadir for the First Amendment & Internet Freedom,” United Liberty, June 15, 2015
News, Op-eds & Blog Commentaries
- April Kelly-Woessner, “First Amendment has been shaped by culture, context,” Lancaster Online, June 14, 2015
- “‘Dispatch’ wins First Amendment Award for series on campus crime,” The Columbus Dispatch, June 11, 2015
- David Gans, “The Role of Three-Judge Courts in Conservative Attacks on Campaign Finance Reform and Voting Rights,” Balkinization, June 12, 2015
- Meredith Hillgartner, “TU Professor on First Amendment, ‘With Freedom Comes Responsibility’,” Everything Lubbock, June 11, 2015
New YouTube Posts
→ George Freeman, Assistant General Counsel of the New York Times Company, speaking at BYU Kennedy Center, “The New York Times & the First Amendment,” posted June 16, 2015
→ Bill Maher interview at the Oxford Union Society, posted June 16, 2015
- “From whistleblowers to self-censorship of the press, undemocratic elections, and artic drilling,” Going Underground, June 15, 2015
- “Skokie Invaded But Not Conquered,” June 15, 2015
- Manfred Zamzow, “Reporters circumvent White House censorship with Google Groups,” June 14, 2015
THE COURT’S 2014-15 FREE EXPRESSION DOCKET
[last updated: 6-18-15]
- Elonis v. United States (decided: June 1, 2015) (8-1 per Roberts)
- Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
- Walker v. Son of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
Review Granted & Cases Argued
- Reed v. Town of Gilbert (argued 1-12-15)
- Berger v. American Civil Liberties Union of North Carolina (license plate case)
- Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
- Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
- Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
- Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)
- Walker-McGill v. Stuart
- O’Keefe v. Chisholm
- King v. Christie
- Apel v. United States
- Dariano v. Morgan Hill Unified School District
- The Bronx Household of Faith v. Board of Education of the City of New York
- Arneson v. 281 Care Committee
- Kagan v. City of New Orleans
- ProtectMarriage.com-Yes on 8 v. Bowen
- Clayton v. Niska
- Pregnancy Care Center of New York v. City of New York
- City of Indianapolis, Indiana v. Annex Books, Inc.
- Ashley Furniture Industries, Inc. v. United States
- Mehanna v. United States
- Stop This Insanity Inc Employee Leadership Fund et al v. Federal Election Commission
- 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, #63: “CJ Roberts: Mr. First Amendment — The Trend Continues“
LAST FAN POST, # 63.2: “Court denies cert in abortion ultrasound case despite circuit split — Balkanization of 1-A rights?“
NEXT SCHEDULED FAN POST, #65: Wednesday, June 24, 2015