First Amendment News 272: Justice Ruth Bader Ginsburg (1933-2020) — Her free speech jurisprudence

I first met Ruth Bader Ginsburg at a constitutional law conference organized by Robert Maynard Hutchins in 1977; I worked with him in putting the event together, which was hosted by Southwestern University Law School. The stellar lineup of 35 participants included the likes of Jesse Choper, Henry Steele Commager, Leon Higginbotham, Max Lerner, Louis Pollak, Constance Baker Motley, Laurence Tribe, and Charles Wyzanski.

And then there was the ACLU lawyer and Columbia Law Professor, Ruth Bader Ginsburg. She was on the Equal Protection panel along with Judge Nathaniel R. Jones and Professor Barbara Brudno. After Hutchins died in May of 1977, it fell to me to oversee (assisted by Thomas Hanley) all the papers that were prepared for the book, "Constitutional Government in America" (Carolina Academic Press, 1980). Ginsburg's contribution was titled "Gender in the Supreme Court: The 1976 Term."

This issue of First Amendment News is dedicated to the memory of Justice Ginsburg. To that end, I have compiled a list of her First Amendment freedom of expression opinions. I have also listed some of the dissents she signed onto in several important free speech cases.

Free expression opinions by Justice Ginsburg

Rehnquist Court 

Majority opinions

1. Ibanez v. Florida Department of Business and Professional Regulation (1994) (7-2: majority)
2. Buckley v. American Constitutional Law Foundation, Inc. (1999) (7-1-1: majority)
3. City News & Novelty, Inc. City of  Wakukesha (2001) (9-0: unanimous)
4. Eldred v. Ashcroft (2003) (8-1: majority)
5. Illinois ex rel Lisa Madigan v. Telemarketing Associates, Inc. (2003) (9-0: unanimous)

Separate opinions

1. Capitol Square Review and Advisory Board v. Pinette (1995) (7-2: dissent)

Roberts Court

Majority opinions

1. Christian Legal Society v. Martinez (2010) (majority)
2. Golan v. Holder (2012) (majority)
3. Wood v. Moss (2014) (majority)

Separate opinions

1. Reichle v. Howards (2012) (concurring in judgment)
2. Beard v. Banks (2006) (dissenting)
3. Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) (dissenting)
4. Nieves v. Bartlett (2019) (concurring in part/dissenting in part)
5. Davis v. Federal Election Commission (2008) (concurring in part, dissenting in part)
6. Ysursa v. Pocatello Education Association (2009) (concurring in part, concurring in judgment)
7. Thompson v. Hebdon (2019) (separate statement)

Dissents in which Justice Ginsburg joined

During her tenure on the Roberts Court, in which she participated in all of its 56 First Amendment free expression opinions, Justice Ginsburg was in agreement with Chief Justice Roberts 61% of the time, as contrasted with Justices Thomas, Alito, and Scalia, who sided with the Chief Justice in over 83% of the same cases.

In those 56 cases, Justice Ginsburg joined in dissent in the following cases (among others) in which a First Amendment claim was denied:

• Government employee speech: Garcetti v. Ceballos (2006)
• Material support: Holder v. Humanitarian Law Project (2010)
• Student speech: Morse v. Frederick (2007)

In those same 56 cases, Justice Ginsburg joined in dissent in the following cases (among others) in which a First Amendment claim was affirmed:

• Campaign finance: McCutcheon v. Federal Election Commission (2014), Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett(2011), Citizens United v. Federal Election Commission (2010), and Randall v. Sorrell (2006)
• Commercial speech: Sorrell v. IMS Health Inc. (2011)
• Compelled speech: Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018), National Institute of Family Life Advocates v. Becerra (2018), National Institute of Family Life Advocates v. Becerra, and Harris v. Quinn (2014)
• Content discrimination: Barr v. American Association of Political Consultants, Inc. (2020)

Related video

"Justice Ruth Bader Ginsburg on the First Amendment," C-SPAN (April 21, 2014) (extended discussion)

2020-2021 SCOTUS term: Free expression & related cases

Cert. granted

• Facebook, Inc. v. Duguid (Telephone Consumer Protection Act robocall case)
• Carney v. Adams  (TBD) (standing/judicial elections)
• Fulton v. City of Philadelphia (TBD) (religious expression: free exercise & free speech claims)

Pending petitions

• City of Sacramento, California v. Mann
• Hurchalla v. Lake Point Phase
• Trump v. Knight First Amendment Institute
• Stockman v. United States
• Lieu v. Federal Election Commission
• Hunt v. Board of Regents of the University of New Mexico
• Living Essentials, LLC v. Washington
• Evans v. Sandy City, Utah
• Bruni v. City of Pittsburgh
• Austin v. Illinois
• Mckesson v. Doe
• Reisman v. Associated Faculties of the University of Maine
• Institute for Free Speech v. Becerra
• Americans for Prosperity Foundation v. Becerra
• Thomas More Law Center v. Becerra 
• Arlene’s Flowers Inc. v. Washington

First Amendment-related 

• Uzuegbunam & Bradford v. Preczewski, et al (nominal damages and mootness in campus speech context) (cert. granted)
• National Association of Broadcasters v. Prometheus Radio Project (RE: Section 202(h) of the Telecommunications Act of 1996) (petition pending)
• Federal Communications Commission v. Prometheus Radio Project (RE: FCC cross-ownership restrictions) (petition pending)

Last scheduled FAN

• FAN 271: "New and forthcoming books issue: The 2020-2021 list”