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More on the Roberts Court's First Amendment free expression jurisprudence: The 2021-2022 term — FAN 345

The Roberts Court, April 23, 2021

The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

Last year David Hudson and I published a detailed analysis of the Roberts Court's First Amendment free expression jurisprudence: "The Roberts Court—Its First Amendment Free Expression Jurisprudence: 2005­–2021," Brooklyn Law Review. Those findings are updated in the data set out below. Some of the more significant takeaways from the last term are: 

  1. Chief Justice Roberts was in the majority in all of this term's First Amendment cases, which means he continued to assign the majority opinions. This was so even in a case in which the First Amendment expression claim was denied and in which Roberts sided with the liberal majority (joined by Justice Kavanaugh) — a rather rare example.
  2. Campaign finance cases continue to win (an unbroken record) in the Roberts Court.
  3. LGBTQ free expression cases continue to come before the Court with review often granted.
  4. Despite Justice Thomas' calls to review its First Amendment actual malice defamation cases, the Court continued to deny review in no fewer than three cases this term.
  5. Despite the Roberts Court's enthusiasm with concerns about the Constitution's text and original meaning, when it comes to the First Amendment that zeal is largely absent, save for its discussions of the Establishment Clause. Justice Thomas is the exception, though he has found little support for such views — see e.g. Morse v. Frederick (2007) (Thomas, J. concurring).
  6. When it comes to the government speech doctrine, the Court's ruling in Kennedy v. Bremerton School District suggests that when a free exercise claim is raised the application of the test may be relaxed (formally or functionally) in favor of allowing religious expression. If so, this could reflect a hierarchy of values within the First Amendment itself.
  7. The Court's application of the Reed content-based test has been weakened somewhat; that is, it does not apply, in the words of the City of Austin majority, when there is no "content-based purpose or justification" — "location-based and content-agnostic" rules thus do not offend the Reed anti-discrimination principle.
  8. The Court's refusal in Egbert v. Boule to recognize a Bivens cause of action for a First Amendment retaliation claim.

Related: Abortion protests

This term the Roberts Court added another five free expression cases to its previous total (58) of decided cases, bringing the overall number to 63.

Number of First Amendment free speech claims sustained: 3

Categories of cases decided, results, and votes
Authors of majority opinions: Votes & total number of majority opinions
Chief Justice Roberts & Justice Kavanaugh
  • In a sign case, Chief Justice Roberts and Kavanaugh joined the liberals in denying a First Amendment claim, with Justices Thomas, Gorsuch, and Barrett in dissent with Justice Alito concurring in the judgment.
Lineup of dissenters
Justice Barrett 
  • In the course of her first term on the Court, Justice Barrett authored no opinions (majority or other) in any of the Court's First Amendment free expression cases.
  • Where the Court was divided in such cases, Justice Barrett voted with the conservative bloc in all of those cases (joining Thomas and Gorsuch in dissent here / joining conservative majority here / and also joining conservative majority here).
Textual and historical analysis: Still absent in free expression cases

Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.

Justice Kagan dissenting in West Virginia v. EPA (2022)

Despite all the Roberts Court's concern with the texts and history of the Constitution, it has paid scant attention to those matters when it comes to the First Amendment save for the Establishment Clause.

Campaign finance cases: Unbroken record
  • The trend continues: Prior to this term, the Roberts Court had sustained the First Amendment claims in all eight campaign finance cases it heard. This term, that trend continued with the Court's ruling in Federal Election Commission v. Ted Cruz for Senate.
LGBTQ First Amendment free expression cases 
Kristen K. Waggoner
Kristen Waggoner
Defamation cases

"This case is one of many showing how The New York Times and its progeny have allowed media organizations and interest groups 'to cast false aspersions on public figures with near impunity.'"

Justice Thomas

This term the Court denied review in three defamation cases:


Topical sampling of cases in which review was denied

2021-2022 SCOTUS term: Free expression & related cases

Cases decided

Review granted

Pending petitions

First Amendment-related petitions

Petition withdrawn 

Applications for stay orders

Review denied

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