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First Amendment News 305: The Roberts Court and its free speech jurisprudence — 14 observations on the 2020-21 term
The 2020-21 Supreme Court term was another notable one in the history of the Roberts Court and its free expression jurisprudence. Here are some highlights of the term:
- 58 opinions: Since its inception in 2005, the Roberts Court has rendered 58 First Amendment free expression rulings, two of which were handed down this past term: Americans for Prosperity Foundation v. Rodriguez and Mahanoy Area School District v. B.L.
- The Chief Justice continues to hold the lion's share of such opinions, with 16, the latest being Americans for Prosperity Foundation v. Rodriguez. That means that nearly 28% of all Roberts Court's opinions in this area were authored by the Chief Justice.
- One of the big surprises of this term was that Justice Breyer authored a majority opinion, his fourth-ever in a free expression case, in the Mahanoy case.
- The liberals: Only 10 of the Roberts Court's 58 First Amendment free expression opinions were written by liberals (Breyer, Ginsburg, Sotomayor, and Kagan). Six of those were by a 9-0 or 8-1 vote and only two by a 5-4 vote.
- The attack on New York Times Co. v. Sullivan (1964) and its progeny continued in Berisha v. Lawson, this time with Justice Gorsuch lending his vote to Justice Thomas's call to revisit the landmark precedent.
- Gorsuch's dissent — An opinion with a future? Whatever one thinks of calling Sullivan and its progeny into question, Gorsuch's dissent from the denial of cert. in Berisha v. Lawson is likely to garner much notice in the legal and academic communities.
- Tinker survives: In the Mahanoy case, the Court reaffirmed the viability of Tinker v. Des Moines Independent Community School District (1969), which is the only time the Justices have upheld a student's free speech rights in 52 years.
- New test: In his Mahanoy Area School District majority opinion, Justice Breyer announced a new test to be used in off-campus student speech cases. He identified “three features” of social media speech that tend to make it less a regulatory concern of the state. "First, a school, in relation to off-campus speech, will rarely stand in loco parentis, he wrote. “Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.” Second, monitoring students’ social media speech off-campus would turn school officials into 24/7 monitors. Third, schools have a strong interest in protecting unpopular student expression and such “protection must include the protection of unpopular ideas, for popular ideas have less need for protection.”
- The ACLU wins a free speech case: Though the ACLU has been on the ropes regarding the strength of its defense of First Amendment free expression principles (see here), it is significant that the Mahanoy case is one the ACLU brought, argued, and ultimately prevailed in. David Cole, the ACLU's national litigation director, argued the case on behalf of the respondent.
- More guidance needed in off-campus speech cases? Professor Catherine Ross termed the ruling “a victory but one riddled with fissures.” More specifically, she added:
The Supreme Court’s failure to define off-campus speech and to provide guidance to school administrators and lower courts about whether, when, and on what grounds schools may regulate and punish students for what they say on their own time from their own equipment, is likely to lead to much additional litigation—and to even more incidents in which schools punish off-campus expression that never reach a court. The ACLU, which so ably represented Levy, and similar public interest groups can expect to send a lot of lawyers’ letters to school districts and localities.The problem with the opinion is compounded by the Court's failure to consider how the ever-emerging communication technologies figure into the "off-campus" analysis of student speech.
- The anonymous speech case: A sign of things to come in campaign finance cases? In his opinion for the Court in Americans for Prosperity Foundation v. Rodriguez, Chief Justice Roberts affirmed an anonymous speech claim in the context of a charitable donors case. Importantly, Roberts’ opinion emphasized the "'possible deterrent effect' of disclosure" (citing NAACP v. Alabama (1958)). Will this be the standard in the campaign finance line of cases? During oral arguments, Justice Breyer wondered about that very question:
If you win in this case, I think the Court will have in some form held that the interest of the donors in maintaining the privacy of their giving to a charity, interests of the charity in receiving [that] money, here at least outweighs the interest of the State in having a law on the books that, even if it never is actually enforced, frightens people into behaving properly. Okay? Something like that. Well, if we hold that, can we distinguish campaign finance laws, where the interest is even stronger in people being able to give anonymously? Can we distinguish laws that require them to disclose their givers? How would you distinguish that, if you would?
- The reach of the Reed doctrine? One of the two cases held over for argument next term is City of Austin, Texas v. Reagan National Advertising of Texas Inc. The issue raised is whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert (2015). While this issue is one over which there are notable conflicts in the lower courts as to the tension between Reed and Metromedia, Inc. v. City of San Diego (1981) (Did Reed sub silentio overrule Metromedia?), the case raises yet another important issue — one raised by the International Municipal Lawyers Association in their amicus brief in support of the Petitioner: "Unless This Court Provides Further Clarity, Reed Will Subvert Central Hudson." In that regard, IMLA adds:
Conflicting interpretations of Reed are undermining far more than the regulation of on/off-premises signs. They threaten to eviscerate a longstanding and foundational pillar of First Amendment law—the rule that commercial speech may be regulated more stringently than non-commercial speech. Premised on the principle that commercial messaging which promotes unlawful, unsafe, or fraudulent business activity does not command the absolute protections afforded non-commercial speech, Central Hudson has endorsed intermediate scrutiny of commercial speech for more than four decades. Central Hudson Gas & Electric Corp., 447 U.S. at 561.
- A new government speech case to be argued next term: Does the First Amendment prohibit an elected body from censuring a member when the censure responds to the member’s speech? The Fifth Circuit held yes, but now the Supreme Court has agreed to consider the matter in the case of Houston Community College System v. Wilson. Will the Court use this case as a vehicle to buttress its ruling in Garcetti v. Ceballos (2006), or does the ruling in Bond v. Floyd (1966) control and thereby vindicate the First Amendment claim?
- Notable cases left unreviewed: The Court either did not reach the merits of some cases or denied cert. in others, leaving some notable issues unresolved: For example: Trump v. Knight First Amendment Institute (social media platforms and the First Amendment), Arlene’s Flowers Inc. v. Washington (compelled expression), Bruni v. City of Pittsburgh (abortion buffer zones), Austin v. Illinois (nonconsensual dissemination of non-obscene materials), and Lieu v. Federal Election Commission (contributions to political committees).
The former president goes after Facebook
- Trump v. Facebook & Mark Zuckerberg (complaint here)
- "Dershowitz: Trump's lawsuit is very important," Newsmax (July 7)
- Spencer S. Hsu, "Constitutional lawyers call Trump’s First Amendment defense against Jan. 6 lawsuits ‘spurious,’" The Washington Post (July 9) (23-page proposed friend-of-the-court brief filed by Floyd Abrams, Erwin Chemerinsky, Martha Minow, and Laurence Tribe).
- Frank LoMonte, "Trump can't beat Facebook, Twitter and YouTube in court — but the fight might be worth more than a win," The Free Speech Center (July 14)
- "Banfield: Panel discusses Trump's lawsuits," NewsNation (July 7)
First Amendment Watch program on media leak investigations
- "Media Leak Investigations and the First Amendment" (video recorded)
In early June, reports emerged that, under the Trump administration, the Justice Department seized the phone and email records of several reporters. The record seizures did not contain the content of the messages, but showed who contacted whom and when. None of the reporters who were targeted knew that the government had taken their information, let alone why. Those that knew about the record seizures were forced to stay silent due to a court gag order. Unable to find the information it was looking for, the Justice Department abandoned its mission and announced that it plans to change its policies governing media leak investigations.
Join First Amendment Watch and First Amendment Coalition on July 13th at 2 pm EST for a FAW Public Forum conversation with Ellen Nakashima a reporter for The Washington Post, Charlie Savage a reporter for The New York Times, and Gabe Rottman, director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press. We will discuss the history of media leak investigations, the Espionage Act, First Amendment protections for confidential sources, and current efforts to tighten policies regarding when and how federal investigators can seize journalists’ contact records.
David Synder, executive director of First Amendment Coalition will moderate the panel discussion, and Soraya Ferdman, First Amendment Watch staff writer, will introduce the speakers and moderate the audience Q&A.
Forthcoming book: 'The Most Human Right'
- Eric Heinz, "The Most Human Right: Why Free Speech Is Everything" (MIT Press, April 12, 2022)
A bold, groundbreaking argument by a world-renowned expert that unless we treat free speech as the fundamental human right, there can be no others.
What are human rights? Are they laid out definitively in the UN’s Universal Declaration of Human Rights or the US Bill of Rights? Are they items on a checklist—dignity, justice, progress, standard of living, health care, housing? In The Most Human Right, Eric Heinze explains why global human rights systems have failed. International organizations constantly report on how governments manage human goods, such as fair trials, humane conditions of detention, healthcare, or housing. But to appease autocratic regimes, experts have ignored the primacy of free speech. Heinze argues that goods become rights only when citizens can claim them publicly and fearlessly: free speech is the fundamental right, without which the very concept of a “right” makes no sense.
Heinze argues that throughout history countless systems of justice have promised human goods. What, then, makes human rights different? What must human rights have that other systems have lacked? Heinze revisits the origins of the concept, exploring what it means for a nation to protect human rights, and what a citizen needs in order to pursue them. He explains how free speech distinguishes human rights from other ideas about justice, past and present.
Minow on 'Government Action to Preserve Freedom of Speech'
- Martha Minow, "Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech" (Oxford University Press, 2021)
A detailed argument of how our government has interfered in the direction of America's media landscape that traces major transformations in media since the printing press and charts a path for reform.
In Saving the News, Martha Minow takes stock of the new media landscape. She focuses on the extent to which our constitutional system is to blame for the current parlous state of affairs and on our government's responsibilities for alleviating the problem. As Minow shows, the First Amendment of the
US Constitution assumes the existence and durability of a private industry. Although the First Amendment does not govern the conduct of entirely private enterprises, nothing in the Constitution forecloses government action to regulate concentrated economic power, to require disclosure of who is
financing communications, or to support news initiatives where there are market failures. Moreover, the federal government has contributed financial resources, laws, and regulations to develop and shape media in the United States. Thus, Minow argues that the transformation of media from printing
presses to the internet was shaped by deliberate government policies that influenced the direction of private enterprise. In short, the government has crafted the direction and contours of America's media ecosystem.
Building upon this basic argument, Minow outlines an array of reforms, including a new fairness doctrine, regulating digital platforms as public utilities, using antitrust authority to regulate the media, policing fraud, and more robust funding of public media. As she stresses, such reforms are not
merely plausible ideas; they are the kinds of initiatives needed if the First Amendment guarantee of freedom of the press continues to hold meaning in the twenty-first century.
New book on campaign contributions and the appearance of corruption
- Daron R. Shaw, Brian E. Roberts, & Mijeong Baek, "The Appearance of Corruption: Testing the Supreme Court’s Assumptions about Campaign Finance Reform" (Oxford University Press, 2021)
A critical analysis of the connections that the United States Supreme Court has made between campaign finance regulations and voters' behavior.
The sanctity of political speech is a key element of the United States Constitution and a cornerstone of the American republic. When the Supreme Court linked political speech to campaign finance in its landmark Buckley v. Valeo (1976) decision, the modern era of campaign finance regulation was born.
The decision stated that in order to pass constitutional muster, any laws limiting money in politics must be narrowly tailored and serve a compelling state interest. The lone state interest the Court was willing to entertain was the mitigation of corruption. In order to reach this conclusion, the Court advanced a sophisticated behavioral model that made assumptions about how laws affect voters' opinions and behavior. These assumptions have received surprisingly little attention until now.
In The Appearance of Corruption, Daron Shaw, Brian Roberts, and Mijeong Baek analyze the connections that the Court made between campaign finance regulations and voters' behavior. The court argued that an increase in perceived corruption would lower engagement and turnout. Drawing from original survey data and experiments, they confront the question of what happens when the Supreme Court is wrong-and when the foundation of over 40 years of jurisprudence is simply not true. Even with the heightened awareness of campaign finance issues that emerged in the wake of the 2010 Citizens United decision, there is little empirical support for the Court's reasoning that turnout would decline. A rigorous statistical analysis, this is the first work to simultaneously name and test each and every one of the Court's assumptions in the pre- and post-Citizen's United eras. It will also fundamentally reshape how we think about campaign finance regulation's effects on voter behavior.
- Alec Greven, "Assumptions Gone Awry: New Book Casts Further Doubt on 'Appearance of Corruption' Legal Standard," Institute for Free Speech (July 7)
New book on academic freedom
- Matthew Ehrlich, "Dangerous Ideas on Campus: Sex, Conspiracy, and Academic Freedom in the Age of JFK" (University of Illinois Press, 2021)
New scholarly article on proposals to regulate social media platforms
- Ashutosh Avinash Bhagwat, "Do Platforms Have Editorial Rights?," Journal of Free Speech Law (forthcoming 2021)
Social media today plays a central, albeit vexing and divisive role in our social and political culture. In response to the alleged failures of social media, a vast array of regulatory proposals have been advanced, and in some cases legislatively enacted, that would restrict the ways in which social media platform owners may moderate content on their platforms. These proposals include, among other things, imposing common carrier status on platforms (an approach endorsed by Justice Thomas in a recent separate opinion), requiring viewpoint-neutral content moderation policies, and restricting or conditioning platforms’ Section 230 immunities in various ways. What all of these proposals have in common is that they seek to impose legal restrictions on how social media platforms control the content that they host, refuse to host, display, and prioritize.
These proposals are in deep tension with the idea that platforms themselves have First Amendment rights to control what content is available or visible on their platforms—what I call editorial rights. This article considers whether, and to what extent, social media platforms enjoy First Amendment editorial rights, and the implications of those rights for assorted regulatory initiatives.
I begin by defining First Amendment editorial rights, and distinguishing between different kinds of editorial rights. I then examine how, and to what extent, the courts have extended editorial rights to new communications technologies. I next turn to the specific question of internet platform editorial rights, concluding that social media platforms should indeed enjoy substantial editorial rights, though probably fewer than prototypical holders of editorial rights such as print newspapers. I conclude by considering whether current regulatory proposals are consistent with these editorial rights.
- Eugene Volokh, "Viewpoint-Neutrality Mandates Must Themselves Be Viewpoint-Neutral," The Volokh Conspiracy (July 13)
- Samantha Barbas, "A major Supreme Court First Amendment decision could be at risk," The Washington Post (July 13)
- "Lawsuit Against Texas Attorney General Who Blocked Critics on Twitter is Dismissed," First Amendment Watch (July 13)
- Adam Steinbaugh & Jordan Howell, "Virginia GOP demands UVA investigate professor over political tweets," FIRE (July 9)
- Eugene Volokh, "Texas Lawyers Can't Be Required to Join the Bar, Because It Engages in Ideological Activities Not "Germane" to Regulating Legal Profession," The Volokh Conspiracy (July 2)
- Annabelle Dickson, "New UK internet law raises free speech concerns, say civil liberties campaigners," Politico (June 29)
2020-2021 SCOTUS term: Free expression & related cases
- Americans for Prosperity Foundation v. Rodriguez (consolidated with Thomas More Law Center v. Becerra)
- Mahanoy Area School District v. B.L. (OA: April 28, 2021) (Re: K-12 punishment for online speech) (Held: 8-1, school district decision to suspend cheerleader for vulgar social media post violates the First Amendment)
- Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (Religious expression: Free exercise & free speech claims) (decided on free exercise grounds)
- Mckesson v. Doe (Per curium, 7-1 with Thomas, J., dissenting) (Judgment vacated and remanded to 5th Cir.)
- Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case — decided on statutory grounds)
- Carney v. Adams (OA: Oct. 5, 2020) (Standing/judicial elections)
- Institute for Free Speech v. Becerra (judgment vacated and case is remanded to the Court of Appeals for the Ninth Circuit for consideration in light of Americans for Prosperity Foundation v. Bonta)
- Houston Community College System v. Wilson
- Trump v. Knight First Amendment Institute (Judgment is vacated, and the case is remanded to the Second Circuit to dismiss as moot)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Crowe v. Oregon State Bar
- Baisley v. International Association of Machinists and Aerospace Worker
- Louisiana v. Hill
- Project Veritas Action Fund v. Rollins
- American Civil Liberties Union v. U.S.
- Boardman v. Inslee
- Berisha v. Lawson (Justice Thomas, dissenting from denial of cert. (Detached Opinion) Justice Gorsuch, dissenting from denial of cert.)
- Arlene’s Flowers Inc. v. Washington (see Josh Blackman, “After Seven Years of Litigation, Justices Kavanaugh and Barrett Let Arlene’s Flowers Wilt,” The Volokh Conspiracy (July 2, 2021)
- Campbell v. Pennsylvania School Boards Association, et al. (Institute for Free Speech amicus brief in support of Petitioners)
- Hamilton v. Speight
- Thompson v. Marietta Education Association
- Thompson v. DeWine
- Stockman v. United States
- Jack Daniel’s Properties Inc. v. VIP Products LLC
- Hurchalla v. Lake Point Phase
- Bruni v. City of Pittsburgh
- Hunt v. Board of Regents of the University of New Mexico
- Lieu v. Federal Election Commission
- City of Sacramento, California v. Mann
- Evans v. Sandy City, Utah
- Reisman v. Associated Faculties of the University of Maine
- Austin v. Illinois
- Living Essentials, LLC v. Washington
- AbbVie Inc., et al. v. Federal Trade Commission (Re: Scope of Noerr-Pennington doctrine) (cert. denied)
- Rentberry, Inc. v. City of Seattle (cert denied)
- Uzuegbunam & Bradford v. Preczewski, et al. (Nominal damages and mootness in campus speech context) (Cert. granted: 8-1 held Art. III claim not moot)
- National Association of Broadcasters v. Prometheus Radio Project (Re: Section 202(h) of the Telecommunications Act of 1996) (Cert. granted & case argued) (Held: 9-0: FCC decision to repeal or modify three of its media ownership rules was not arbitrary or capricious under the Administrative Procedure Act)
- Federal Communications Commission v. Prometheus Radio Project (Re: FCC cross-ownership restrictions) (Cert. granted & case argued — held the FCC’s decision to repeal or modify three of its media ownership rules was not arbitrary or capricious for purposes of the Administrative Procedure Act.)
- Retzlaff v. Van Dyke (State anti-SLAPP laws in federal diversity cases) (cert denied)
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