“Transparency is essential for the proper functioning of any judicial system. As legal philosopher Jeremy Bentham wrote in the early nineteenth century, ‘[p]ublicity is the very soul of justice.’ Without public oversight over the judicial system, Bentham warned, ‘all other checks are insufficient.’” — David S. Ardia
“The mystery regarding the identity of the leaker remains.” — Jack Wolfson
The idea of transparency in government is key to our First Amendment way of life and law. That principle, as Justice John Paul Stevens once declared, means that “the First Amendment protects the public and the press from abridgment of their rights of access to information about the operation of their government, including the Judicial Branch.” Yet, that principle has little or no currency when it comes to the workings of the Supreme Court. Regrettably, this holds true for the Roberts Court which prides itself on its commitment to advancing First Amendment values. On that score, Chief Justice John Roberts proudly proclaimed: “I’m probably the most aggressive defender of the First Amendment.”
That’s how Chief Justice John Roberts described his fidelity to First Amendment ideals when he engaged Belmont Law School Dean Alberto Gonzales in a conversation about his jurisprudence in February of 2019. Such fidelity, however, ends once one steps foot on 1 First Street, where the justices preside in their marble palace. Inside, no cameras are allowed in their court, or as Roberts asserted: “Our job is to carry out our role under the Constitution, is to interpret the Constitution and laws according to the rule of law. And, I think, having cameras in the courtroom would impede that process.”
Not even the announcement of opinions can be televised to the public.
The investigation behind the wizard’s curtain
It has been 246 days since the Chief Justice “directed the marshal of the court to launch an investigation into the source of the leak” concerning the draft opinion publicly released in Dobbs v. Jackson Women’s Health Organization. In his words, that leak amounted to a “singular and egregious breach” of trust. That said, and as Josh Gerstein has observed: “It’s not clear [that Roberts] has the right to order anybody to cooperate.” If so, where does that leave things?
In the aftermath of the leak, there has been much speculation: Did a law clerk leak the draft, or possibly a Justice, or even a Justice’s spouse? As speculation mounts, however, the prospect of any disclosure diminishes. Meanwhile, warring headlines such as the following three (here, here, and here) occur with increasing frequency:
Alito calls leak of Supreme Court draft opinion overturning Roe a ‘grave betrayal’ that endangered some justices.
Lawyer for Supreme Court defends Justice Samuel Alito after allegations of a second leak
What happened to the investigation into the Dobbs draft leak?
The sound of silence
Late last November, two “senior Democrats in Congress [demanded] that Chief Justice John Roberts detail what, if anything, the Supreme Court has done to respond to recent allegations of a leak of the outcome of a major case the high court considered several years ago.”
Here, again, crickets. Then, in December, there was a House Judiciary Committee hearing about ethical norms and how they needed to apply to the justices when it comes to leaks and related matters of judicial favoritism. All of this and more made for a revealing headline in The Washington Post:
Chief justice ignores controversial Supreme Court term in annual report
Will the results of the Court’s internal investigation of the Dobbs leak ever be made public? If so, just how comprehensive and forthright will such a report be? If not, why not? Will any explanation ever be given as to why such matters are kept secret?
Four months ago, Justice Neil Gorsuch was reportedly optimistic that a report on the Dobbs leak would be publicly released “soon.” And yet, as the Court becomes ever more mired in controversy, no such report has surfaced. Does the public not deserve at least some word about the status of the leak investigation? As James Zirin aptly observed last month: “Roberts promised a full investigation of the matter, and justices said they expected a report from him in late fall. If there has been such a report, it has not been made public, and the public is entitled to an update.”
With reports that the Roberts Court is venturing to amass its own power over that of the states and other branches of government (the “Imperial Supreme Court”), the Court’s silence on the leak investigation can only buttress that perception and further undermine its legitimacy in the public mind. Then again, what if someone associated with the Court (or a friend or family-member) leaked the Dobbs opinion? Should that breach be covered up?
The devil is in the details
Yet other questions remain. For example:
- Did the leak investigation include any demand for the law clerks’ phone records?
- Did the probe investigation extend to the justices and their friends and spouses?
- Has the leak inquiry been completed? Is it final?
- If the leak inquiry has been completed, are any of the justices privy to it? What about the Court staff and law clerks, do they know of its contents?
- Will any of the justices have any hand in drafting or editing any final report?
- Have any outside sources (e.g., the FBI) aided in the leak investigation?
- Has any disciplinary action been taken against anyone affiliated or previously affiliated with the Court?
- Have any changes been instituted as to how draft opinions are circulated?
Will John Roberts, “the most aggressive defender of the First Amendment,” offer any answers to these and other troubling questions? That is, how faithful will he be when it comes to the transparency principle (and ethical norms too)? In the end, will Roberts opt for the mystique of invisibility? — the “Wizard of Oz” façade that hides the manipulator behind the curtain.
- Avalon Zappo, “Judge Urges SCOTUS Not to Apply 1st Amendment Protections to ‘Racist Hate Speech’,” Law.com (Dec. 29)
A federal appellate judge, in rejecting the First Amendment arguments of students expelled for making racist Instagram posts, urged the U.S. Supreme Court to reconsider its guidance on when government officials can regulate hate speech.
Judge Ronald Gould, of the U.S. Court of Appeals for the Ninth Circuit, wrote a concurrence backing the dismissal of a lawsuit that two California students—Kevin Chen and Cedric Epple—brought against their high school after they were disciplined for posting racist content about their peers on a private Instagram page. The court said the contents of the account, which included posts comparing Black students to gorillas, weren’t constitutionally protected.
In his concurrence, Gould said the justices could modify the high court’s test for when inflammatory speech can be restricted not just by school officials but the government more broadly.
Ninth Circuit rules teacher’s MAGA hat is protected political speech
- Jeff Manning, “Appeals court rules Vancouver teacher’s MAGA hat is a form of political speech protected by First Amendment,” The Oregonian (Jan. 3)
The 9th Circuit Court of Appeals sided with a local middle school science teacher, ruling that his “Make America Great Again” baseball cap amounts to a form of political speech protected by the First Amendment.
Eric Dodge ran afoul of Evergreen Public Schools officials when he brought his bright red “MAGA” hat — a trademark of former President Donald Trump — to a cultural sensitivity training. The appeals panel ruled late last week that his first amendment rights had been violated when his employer told him he could not bring the hat to the training. Dodge claimed he was verbally attacked by his principal, who allegedly called him a “racist” and a “homophobe.”
Dodge’s initial internal harassment complaint filed with the district was dismissed as “unsubstantiated.” Dodge appealed a lower court’s ruling in favor of the district.
The appeals panel ruled that Dodge “was engaged in speech protected by the First Amendment.”
Adjunct professor dismissed for showing image of Muhammad in art history class
- Scott Jaschik, “Academic Freedom vs. Rights of Muslim Students,” Inside Higher Ed (Jan. 3)
This fall, an instructor at Hamline University, [a private college] in Minnesota, was teaching global art history. For one class, the instructor (who has not been named) was discussing Islamic art and included for a brief period (under 10 minutes) a screen image of Muhammad, the founder and prophet of the Muslim faith. The instructor had warned students of her plan.
[ . . . ]
One or more students complained about the image, believing (as many, but not all, Muslims believe) that showing the image was wrong.
“We have learned, over many years, that knowledge can be shared in a multitude of responsible, thoughtful and respectful ways. Our response to the classroom event does not disregard or minimize the importance of academic freedom. It does state that respect, decency, and appreciation of religious and other differences should supersede when we know that what we teach will cause harm,” Fayneese Miller, the university’s president, and David Everett, associate vice president for inclusive excellence, wrote in a letter to the campus on Dec. 9, which was confirmed as reflecting the university’s position.
- Keith Whittington, “Academic Freedom Alliance Statement Regarding Hamline University,” The Volokh Conspiracy (Jan. 3)
- Sabrina Conza, “FIRE calls on Hamline University to reinstate art history instructor dismissed for showing medieval depiction of Muhammad,” FIRE (Dec. 27)
Expedited review: Submit your articles to the Journal of Free Speech Law
- Eugene Volokh, “Submit Your Articles to the Journal of Free Speech Law, Before You Circulate Them to the Law Reviews,” The Volokh Conspiracy (Jan. 3)
Our peer-reviewed Journal of Free Speech Law, which is now two years old, has published dozens of articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jeremy Waldron (NYU), Cynthia Estlund (NYU, forthcoming within a week or so), Christopher Yoo (Penn), Danielle Citron (Virginia), and many others—both prominent figures in the field and emerging young scholars (including ones who didn't have a tenure-track academic appointment).
I expect that many authors are planning to submit articles on free speech to the usual law reviews when the submission cycle begins in February. But if you submit exclusively to us before that, we will give you an answer within 14 days (our guarantee, which we have so far never broken); and then if you'd like to have it published quickly, we can publish it in within several weeks, if it's sufficiently clean and cite-checked by your research assistant.
Mchangama on European plan to fix social media
- Jacob Mchangama, “Don’t be too tempted by Europe’s plan to fix social media,” Los Angeles Times (Dec. 23)
For many Americans, social media has become a monster. Platforms like Twitter, Facebook and YouTube are seen as festering hotbeds of hate and misinformation that threaten the very foundations of American democracy and civility. Calls for regulation have intensified, with some prominent voices looking across the pond for a model to regulate social media in the public interest.
In November, the European Union’s Digital Services Act took effect, with enforcement beginning for some businesses during the next year and for the rest in January 2024. The stated purpose of the law is to end the supposed “Wild West” of the internet and replace it with a rules-based digital order across the EU’s member states. The sweeping piece of legislation includes an obligation for platforms to evaluate and remove illegal content, such as “hate speech,” as fast as possible. It also mandates that the largest social networks assess and mitigate “systemic risks,” which may include the nebulous concept of ‘disinformation.’
This is in stark contrast to the U.S., where platforms enjoy broad immunity from responsibility for content created by users, and where the 1st Amendment protects against most government restrictions of speech.
‘So to Speak’ podcast on Ann Coulter’s words
- “Are Ann Coulter's words really 'violence'?,” FIRE (Dec. 21)
Do Ann Coulter's words equal “violence”? Does Emerson College care more about not offending the Chinese Communist Party than protecting student free speech rights? And are faculty political litmus tests back in vogue? FIRE’s Alex Morey and Zach Greenberg join the show to discuss the latest in campus censorship.
- Eugene Volokh, “Libel About Protected Speech,” The Volokh Conspiracy (Jan. 3)
- Bret Pallotto, “Flag-burning political activist sues State College, alleges violation of First Amendment,” Centre Daily Times (Jan. 3)
- Theodore J. Kury, “What social media regulation could look like: Think of pipelines, not utilities,” The Free Speech Center (Dec. 31)
- Nico Perrino, “Free speech was under fire in 2022,” The Detroit News (Dec. 28)
- Timothy Nerozzi, “Louisville abortion clinic buffer zone infringes on First Amendment rights, appeals court finds,” Fox News (Dec. 22)
- Adam Johnson, “‘Free Speech is whatever the rich say it is,” The Real News Network (Dec. 22)
- “Virginia Tech Soccer Player’s Free Speech Lawsuit Continues to Trial,” First Amendment Watch (Dec. 21)
- Anna Diakun, “New DOJ Regulations Are a Victory for Press Freedom, But More Work Remains,” Knight First Amendment Institute (Nov. 21)
- 303 Creative LLC v. Elenis (argued Dec. 5)
- Jack Daniel’s Properties, Inc. v. VIP Products LLC
- United States v. Hansen
- Moore v. Texas
- Barton v. Texas
- Arkansas Times v. Waldrip
- Moody v. NetChoice, LLC
- NetChoice, LLC v. Moody
- Florida v. NetChoice
- Novak v. City of Parma
- Counterman v. Colorado
- Klein v. Oregon Bureau of Labor and Industries
Liability under Anti-Terrorism Act
Section 230 immunity
- Gonzalez v. Google (review granted)
- My Pillow v. U.S. Dominion (news story)
- Kowall v. Benson
- Tofsrud v. Spokane Police Department
- Swanson v. Griffin County
This article is part of First Amendment News, an editorially independent publication edited by professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of professor Collins.