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Who’s talking to whom about free speech?

William Turner, Lecturer in media studies | November 8, 2017

I came across this picture of the current Supreme Court justices. It must have been taken in an unguarded moment just before their annual formal portrait. In my imagination the justices are chatting about their views on the First Amendment.

It looks as though Clarence Thomas is trying out one of his unorthodox theories of constitutional interpretation on a dubious Chief Justice John Roberts, while Stephen Breyer is amused by the unworldly dialogue.

It looks as though Ruth Ginsburg is politely advising Anthony Kennedy to tone down his over-the-top free speech rhetoric and confess his error in authoring Citizens United.

It looks as though the newest conservative justice, Neil Gorsuch, is trying to make eye contact with Sonia Sotomayor, and she’s having none of it.

It looks as though Samuel Alito and Elena Kagan would rather not be thrown together.

My imagination could be wrong. What’s not imaginary is the Roberts Court’s doctrinal disarray in deciding free speech cases, my main professional interest. Since Chief Justice John Roberts’s appointment in 2005, the Roberts Court has decided more First Amendment cases than any previous court in history. The great majority of decisions have come out on the free speech side, but you may not like the speech they have favored.

The Roberts Court has given us the right to:

  • Lie about receiving military medals
  • Display anti-gay, anti-Catholic signs at military funerals
  • Sell extremely violent video games to minors
  • Trademark racial slurs like “slants”
  • Sell videos of dogfights
  • Try to persuade women entering abortion clinics to forego abortions.

And, of course, the court also, in soaring Kennedy-esque free speech prose, gave corporations the right to spend their money to support or oppose political candidates.

The court has ruled against free speech claims in a few cases, notably:

  • Limiting the speech rights of school students and government employees
  • Allowing the FCC to continue to censor and punish “indecent” speech on broadcast radio and television
  • Deciding that specialty license plates are “government speech” to which the First Amendment has no application at all

Except for Citizens United and campaign finance cases following it, the Roberts Court’s First Amendment decisions have not been decided by the well-known 5-4 conservative-liberal splits. This is because the cases don’t involve partisan political issues. Rather, they involve the individual justice’s tolerance for speech that the majority of citizens find despicable, or, on the other hand, the justice’s trust in government to make sound decisions about what speech should be protected or punished.

Many of the decisions both for and against speech claims use conflicting approaches to how the First Amendment should apply. Chief Justice Roberts does not seem able to control his unruly colleagues, and even the opinions he personally has authored are often inconsistent in their First Amendment analysis. Since the court is unable to articulate and follow consistent principles, its free speech decisions have become unpredictable.

For example, the court has insisted in some cases that the government produce evidence that a restriction on speech is “actually necessary” to serve an important government interest, but has completely ignored this requirement in other cases. The justices also disagree about the level of “scrutiny” it should give to various speech restrictions. They only inconsistently examine whether a given restriction is “overinclusive” (banning too much speech) or “underinclusive” (allowing other speech that is more harmful than the restricted speech). They have left the contours of the new “government speech” doctrine undefined. (Can a state put up a billboard announcing “Abortion is murder,” or “Democrats not welcome here?”) And they have never explained why, if the First Amendment protects “speech” regardless of the identity of the speaker, as Citizens United said, corporations have greater free speech rights than human beings like government employees and school students.

If the justices can’t agree on the ground rules for deciding cases, it is no surprise that the results are willy-nilly. Perhaps the justices should chat with each other, as in the photo above, more often.