Table of Contents
‘So to Speak’ podcast transcript: The John Roberts Supreme Court
Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico Perrino: Welcome back to So To Speak: The Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. As always, I am your host, Nico Perrino. And coming to us on today’s show are two guests that all of other listeners should be very familiar with.
We have David Hudson, who’s been, I think, on the podcast three times so far in 2022 – maybe a record. He is, of course, the assistant professor of law at Belmont University and a Justice Robert H. Jackson legal fellow for FIRE.
And then we also have Ronald Collins who should also be well-familiar to many are our listeners, maybe perhaps the most frequent appearer on the podcast historically. He’s a First Amendment scholar, the author of many books on free speech topics, including 2019’s The People v. Ferlinghetti, which we discussed on this show, and he is the editor of the weekly and indispensable First Amendment News newsletter.
David and Ron, welcome back onto to the show.
Ron Collins: Glad to be here Nico. Thank you for having us.
David Hudson: Yeah, thank you.
Nico: So, Chief Justice Roberts has been the chief justice, John Roberts, of the Supreme Court for, what is it now, 17 years?
Ron: Yeah, since 2005.
Nico: And I don’t think we’ve ever on this podcast discussed his role or the significance that he plays for the First Amendment. But you two have recently come out with a new law review article in the Brooklyn Law Review called “Roberts Court – Its First Amendment Free Expression Jurisprudence: 2005–2021.” And you both make the claim that no chief justice in other history has had as much influence on the law of free expression as John Roberts.
You write that the Roberts Court by the end of 2021, that term, had released its 58th First Amendment ruling. And during the last two terms, that is, the 2019 to 2020 and 2020 to 2021 terms, the Court granted review in 12 cases that raised First Amendment free speech claims. So, might be an argument that we’re even seeing more First Amendment cases now in his 17th year.
David, I wanna start with you and ask: What led you to come up with this idea for a law review article? Had you and Ron been thinking about this for a while?
David: It’s really the brilliance of Ronald Collins. Ron is just a brilliant thinker. I think people will be reading and talking about some of his work long after he’s departed. And I just –
Nico: Hopefully, not too soon.
David: Yeah, yeah. That the sounded bad. No, but honestly, it was Ron’s brainchild, and I’m just grateful he put me on the team.
Nico: Well, let me kick it over to Ron then. What’s the inspiration?
Ron: So, as my father used to say, “Ron’s a great guy, and he’s got a lot of great ideas. And he always thinks of ways to have other people execute them.”
The fact is, although I’ve written a number of articles – the vast majority books with David Skover – this article, I betrayed my fellow author and went to a new author. David Hudson and I, we’d worked together for many years at the Freedom Forum, the First Amendment Center, what have you. So, we were used to work together. We’d written with each other before.
And I will say this without any exaggeration or qualification. I could never have done this article alone. I mean, when it comes to decisional law, David just – he has all of this stuff at his fingertips. And so, kind of combining his shills and mine, this was a daunting project, really was. And by the way, when we say First Amendment, just so we’re clear for your audience, it’s First Amendment of speech, press, petition, assembly – not religion. So, we don’t get into the religion cases. But that alone took us 125, 560-some notes.
Nico: So, when you say 58 First Amendment ruling, you don’t mean –
Nico: Right, religion. Okay.
Ron: No religion cases. But even then, it was a daunting case. I mean, daunting project. And it wasn’t just the cases. It was the lawyers, the arguments, kind of everything.
So, this is the first and most comprehensive study of the Roberts Court and its free speech record when it comes to First Amendment that has been done. And it really took – I don’t know, David – probably well over a year just kind of going back and forth, and checking, and double checking, and triple checking.
And just by the way, one shout out, the folks at the Brooklyn Law Review. And I’m no fan of law review editors. I’ve had my run-ins with them over the years. But these folks were really spectacular, and we were so impressed by them that we wrote to the dean to congratulate them. They did just first rate job.
Nico: Is John Roberts – I mean is this a conversation that’s happening within the legal community about John Roberts’ First Amendment jurisprudence or the court’s taking of so many First Amendment cases in the past 17 years? Or is this something you guys noticed that was happening but going uncommented on?
Ron: Well, I’ll just start and let David pick it up. I think those in the know knew that John Roberts was a player. Just like you knew that Anthony Kennedy was a player, or that you knew that Hugo Black was a player, Douglas or Brennan. But when you see the numbers, that’s what’s shocking. David, what do you think?
David: I agree. I think Professor Joe Lore had written a bit on Roberts Court, free expression record. I think we cited one of his prior pieces. But I don’t think there’s been anything quite as comprehensive, certainly, that looked at it in such detail.
Nico: Does he author most of these opinions? You think of Kennedy as the free expression guy.
Ron: Well, let me just step back. If you think of the evolution of modern free speech law – so, by that, I mean 20th century – obviously, it starts with Holmes and Brandeis. But there’re in dissent. So, there’re kind of setting the stage for everything. And then comes along Black, Douglas, and Brennan, who all in different ways kind of further invigorate the First Amendment, and primarily with the Warren Court.
And then you get to the Burger Court and the Rehnquist Courts. And then, at least with the Burger Court, it’s Roberts. I mean, excuse me, it’s Anthony Kennedy. And then once John Roberts comes on, it’s Kennedy and Roberts. And then all of a sudden, it’s just John Roberts. He just has the lion’s share. He’d write more than twice as many First Amendment opinions than any of the other justices.
So, again, think of it, the evolution. Holmes and Brandeis. Black, Douglas, Brennan. Kennedy, Roberts. And then Roberts. So, it’s really significant that evolution.
What is your sense David?
David: I agree. I think that First Amendment doctrine has really become far more nuanced, and I think part of it is that, that there are just different First Amendment claims with sort of the evolution of viewpoint discrimination, the content-discrimination principle, and various different challenges to different laws based on the First Amendment, that it’s been within environment where there are more First Amendment challenges being made. And Chief Justice Roberts certainly has, as Ron said, written the lion’s share of the majority of opinions, significant. It was very statistically significant.
Ron: And then, one of the things that we found here, Nico – I may be jumping ahead; if I am just let me know, and I’ll just take a pause here –
Nico: Go ahead.
Ron: – one of the things we found, it’s like, who are the nonplayers? When it comes to the First Amendment and free speech, who are the players who really don’t figure in? Ginsburg, Kagan. In all the time that she’s been on the court, Kagan has only written one – one – majority opinion in this area. Sotomayor, two. Ginsburg, three. Breyer, four. So, the nonplayers are the liberals.
Who has written the most dissents? Breyer. I mean well ahead. Although, we were surprised to find out that Alito ranked second. But still, Breyer are had written. So, at least on the Roberts Court, Alito, except for campaign finance and maybe a couple of other areas, is not a strong First Amendment advocate.
When people say that the Court isn’t political – and maybe David has a different point of view on this, which is fine – it’s hard to imagine because, in these cases, who are the people that are nonplayers? Who are the people who in the dissent the most often? I’m speaking in generalities now. It’s the liberals. It’s clearly that’s the case.
This is your chance to dissent in part or concur in part.
David: I think –
Ron: Which is what we do when we write these.
David: Yeah. I think there’s a great divide too on an issue. And maybe this might be jumping ahead slightly. I think it’s the Regan v. City of Austin case that might reflect this dissonance. But there’s a real divide on the Court with record to the application of the content-discrimination principle.
Do we take the sort of Kagan view where we predominantly look at the underlying purpose? Right. Is the purpose of the law to discriminate against content? Or is it more of what Justice Thomas wrote about in Reed v. Town of Gilbert? If there’s any facial distinction, then it’s content-based.
And I think there is that divide on the Court where some justices apply the content-discrimination principle more rigorously, and some take I step back and look perhaps at what’s the larger purpose.
Nico: So, when you say the divide, you think that’s what’s animating the liberal-conservative divide on the Court in some of these cases.
David: I think on some of them, yes. On others though, the Court has –
Nico: But that started in a certain sense during the Roberts Court, right? Because you write that William Rehnquist was no big defender of First Amendment values as we would interpret them, of course.
David: Yes. Although, he did surprise people early on in 1988. He wrote the opinion in Hustler v. Falwell. And at the time, if you go back and look at the newspaper clippings, the press was extremely worried about what the new chief was going to do. And it turns out – Ron may know more about this – but I remember about the notion that Rehnquist was actually a great collector of cartoons and political cartoons. So, he was very moved by Roslyn Mazer’s amicus brief. And while he said that the cartoons of Thomas Nast were a distant cousin of what Mr. Flint did with regard to Jerry Falwell.
Nico: Just remind other listeners what Mr. Flint did do.
David: Well, he did a Campari Liqueur ad parody that said that Jerry Falwell’s first time was with his mother in an outhouse. But it’s one of the more celebrated –
Nico: They made a movie about that, didn’t they?
David: It’s one of the more celebrated First Amendment free speech opinions, and Chief Justice Rehnquist wrote the Court’s opinion. So, he did have an occasional bright spot with regard to the First Amendment. But it’s certainly true that his former law clerk I think has surpassed him.
Ron: Yeah. I mean, the fact is, the reason and why that was such a surprise is because his record was disastrous on free speech. Geoffrey Stone wrote it. It’s amazing that the law clerk who was so influenced by Rehnquist, John Roberts, his views are completely antithetical to those of Rehnquist.
But going back to this liberal-conservative divide, the Roberts Court has never seen a campaign finance First Amendment case that it didn’t like. That’s not a coincidence that this happens.
The other thing that occurred to me is, and we talk about this – I say it occurred to me; it occurred to us – is you hear a lot talk about textualists and originalists, a lot talk about that. And it’s kind of like if you’re gonna be nominated these days on the Republican president, you have to be originalist, textualist. And if you’re nominated by a Democrat president, you’re certainly not that. You’re something else. But the thing is, is that has played virtually no role in the speech jurisprudence of the Roberts Court.
You had Hugo Black start it. Okay. And that was textualism, originalism, liberal. And then you had Scalia. And Scalia, for all his talk about textualism and originalism, virtually nothing, very little in the First Amendment area. And then comes along Clarence Thomas, a couple of dissents from denial of cert, a couple of wax – and we’ll talk about this in a moment – against New York Times v. Sullivan.
But the fact is, is when it comes to originalism and textualism – let’s just think about this – Congress, not the president, not the judiciary, Congress shall make no law. No? What does “no” mean? What does Congress mean? Abridging? Has any of these textualists ever written anything extensive on the word bridge? I mean, that’s a pretty significant word.
And when you think of it, originalism and textualism, except for some dissents from denial of cert and a couple of other things – and we can talk about the Morse v. Frederick case; I’ll let David talk about that – it’s virtual absent. It doesn’t exist in this world.
Nico: I wanna ask you though, Ron, because there was something you said, “John Roberts hasn’t seen a campaign finance case that he doesn’t like.” You right in your article that, “For some, the Roberts Court is an exceptionally speech protective court; while for others, it is a court that has weaponized the First Amendment to serve the interest moneyed and powerful.”
Some of the Roberts Court’s most influential opinions come in the campaign finance context, come as well in the commercial speech context. They’re not the, some might argue, free speech cases of the past dealing with assembly and core political speech. Although, campaign finance of course implicates that. But it’s not like the flag burning. It’s cases that are a little bit different, more at the margins of what people might say as like the core First Amendment stuff.
Or am eye wrong? Right. They have those too. You look at Simon Tam’s case in front of the Court. You look at the Phelps case.
Ron: Yeah. Doctrines like, for example, the campaign finance case, that, Buckley v. WeHo, Joel Gora for the ACLU, these began as kind of, if you will, liberal doctrine. Same thing with content discrimination, which goes back to a majority opinion that was written by a liberal justice, Justice Marshall. And those doctrines have now kind of, if you will, crossed the ideological divide and are now pretty much the mainstay of conservative justices. And this weaponization language you talk about comes from Justice Kagan. And it’s how the liberals see it.
David: Yeah, it’s well-said. I think how one views the Roberts Court in large part depend on what one thinks of Citizens United and progeny. If you view those as First Amendment victories, then the Roberts Court is certainly a very much pro-free speech court, and you can take the counter view if you view those as something else.
Ron: Yeah. Another – go ahead.
Nico: I was gonna say. If you’re kind of separating out the Court’s – the cases that are at the cutting edge of First Amendment law, you can say some of the campaign finance cases of that, some of the commercial speech cases of that. But it’s also the Roberts Court, with the exception of maybe – they’ve also taken on student speech cases. And the Mahanoy case is very much of the lineage of Tinker and some of those older courts in traditional free speech approaches.
Ron: Yeah. I think that case fits well within that conservative framework. The thing is, is it was a case obviously brought – I shouldn’t say obviously brought. It was argued by David Cole of the American Civil Liberties Union. But that was a case that really kinda pleased both parties because the ACLU was able to get on the student speech side. But conservatives, the idea that these regulators were going to be asserting the rights of parents off campus, this was an outrage.
That’s the only thing about First Amendment cases. Sometimes, as in that case, they kind of sit on the fence. And both parties can come along for the doctrinal or conceptual ride as it were.
Nico: I wanna take a step back really quickly, Ron, and then we’ll dig that some of the meat and some of the cases from the Court. But John Roberts before he became chief justice, you have a really good anecdote in here. I know I’ve known Bob Corn-Revere for a long time; I did not know he worked with John Roberts at Hogan & Hartson. But when Bob was arguing United States v. Playboy Entertainment Group before the Supreme Court, a case dealing with the Telecommunications Act and sexual expression, John Roberts assumed the role of William Rehnquist during the moots of that case.
Let’s say you’re at the hearings. John Roberts is getting grilled before he’s confirmed. What information would anyone have had about his First Amendment proclivities before he got to the Supreme Court? Would you have seen any of what you found here in his past work?
Ron: Certainly nothing significant. And it’s a fascinating question. Why ride this horse? Some justices say it’s gonna be equal protection. Some, it’s gonna be new process. Some, it’s gonna be the Dormant Commerce Clause. Right.
Nico: So, you think this is his horse, the First Amendment. Yeah.
Ron: Yeah. But I think the horse is just speech. I think the other side of the saddle bags is religion. I wouldn’t have seen this. When we talked to Bob Corn-Revere, a noted First Amendment lawyer, and he told us about this, it was like kind of eye opening. But beside that, I don’t think there was anything that – in fact, the fact that he clerked for Rehnquist, you probably might have just assumed the opposite.
Nico: David, what are your thoughts?
David: Yeah, I agree. I think when he was arguing some cases in the solicitor general’s office, he was versed in First Amendment law, but I couldn’t see anything that would predict this, that he would be so active and take such an active role in First Amendment jurisprudence.
Ron: When you talk about active role, it’s not just that as chief justice he has written more than twice as many majority opinions; but it’s also he assigns like over 95 percent of these opinions when he’s in the majority. Now, will that change? Will the advent of the new justices, the tree Trump justices, will that buttress his power? Will it change it? I suspect it will retain it. But that’s an enormous power that he’s had.
And I hope we can get to it later, but I’ll just flag it now. Just like campaign finance was kind of the big ticket of the Rehnquist Court and into the Roberts Court, I think the new big ticket item is free speech and religion freedom. And I suspect that John Roberts will be leading the way on that as well. Now, I may be getting ahead of things, and I’m willing to hold that. But I just wanted to –
Nico: No, let’s explore that. What leads you to that belief? What past cases and current cases?
Ron: I will echo what he says.
Nico: Assuming he agrees with you, Ron.
David: Yeah, well, I think the Court seemingly is – when we look at freedom of religion, the Court is seemingly – they have not quite buried Lemon, but it’s almost interred if we look at the American Atheists case from 2019. And then if you –
Nico: When you say buried Lemon, can you give other listeners some context on what you’re talking about?
David: Yeah. So, there was a test called the Lemon test that was created by Chief Justice Warren Burger in his opinion Lemon v. Kurtzman in 1971. And it’s a three-part test. It’s sometimes referred to as the purpose prong, effects prong, and the entanglement prong. That there must be a secular purpose for the regulation. That the governmental regulation must not have a primary effect that advance or inhibits religion. And then the governmental regulation must not excessively entangle a church and state.
And that was the test that the Burger Court used in Establishment Clause cases exclusively until Marsh v. Chambers, which was a 1983 decision, and I think it challenged a 107-year-old practice bit Nebraska legislature of introducing prayer, chaplain-led prayer, in the legislature. And that the was challenged by Ernest Chambers, who was a very interesting man who once filed a federal lawsuit against God. It got dismissed for threshold reasons.
But never the less, there’s been a lot of criticism of Lemon. And Justice Antonin Scalia famously referred to it as a “nightmarish ghoul that still stocks our Establishment Clause jurisprudence” in Lamb’s Chapel in 1993 I think it was. But there has been incredible criticism of Lemon. And so, Justice Kavanaugh criticized. Justice Gorsuch criticized it. Justice Alito criticized it.
Nico: Is it all on the same grounds? On what grounds?
David: Well, they think it leads to inconsistent results. They think that it is not rooted in history and tradition. They think it leads to result-oriented decision-making. And bottom line is, I think there is a very different vision off the Establishment Clause on the are the Roberts Court, and that’s going to be reflected in some coming decisions.
And then when we look at the other religious liberty clause, the Free Exercise Clause, the Court is starting to breathe more vigor into that, with the 2017 Trinity Lutheran case and the Espinoza case out of Montana where the Court is really applying – and this is what Ron is talking about – the merging of the viewpoint discrimination principle and freedom of religion. The Court is very concerned about religious entities being treated worse than nonreligious entities. And the vehicle by which they assert that is now not just the Free Speech Clause, but it’s also the Free Exercise Clause.
So, bottom line is, hopefully, we’ll be able to do something on religion clauses on the Roberts Court eventually if we don’t have too many projects. But I just think I agree with Ron wholeheartedly that I think you’re gonna see a lot of movement in that area over the next decade.
Ron: So, what we are seeing is the demise of the Establishment Clause, the rise of the Free Exercise Clause – that’s on the religion side. And then if you move to the speech side, think about bakers who design wedding cakes. Think about florists who design floral arrangements. Think about online web designers who design websites. In all three examples, for gay couples. All right. So, just think about those sorts of situations.
So, there you have a baker who doesn’t want – who claims a First Amendment speech and free exercise right not to make designer cakes for gay couples. You have a florist who on free speech and free exercise grounds refuses to make floral arrangements for gay couples. And you have an online web designer who refuses to do the same thing.
By the way, all of those cases are brought to you by the same lawyer, Kristie Wagner. Keep your eyes often that woman. We’re gonna see a lot of her in the Supreme Court context.
And mostly recently, the Court has granted cert on a case called 303 Creative LLC v. Elenis, which is the online web designer case. I suspect you’re gonna see more and more claims of free speech and free exercise in ways that undermine the quality principle in the context of gay and transgender rights. That’s my guess in terms of where this court is going.
Which raises an interesting question. Assuming that I’m correct and the Court does proceed – and I think the test – and I’m gonna let David tease this out – but the test that the Court used is in the Masterpiece Cake case, I don’t think that test is gonna survive. I think they’re gonna have a much more stringent and categorical test.
Nico: What was the test in that case?
Ron: Well, I wanted David to get to that in a second because I just wanna make one more point. Because if you just heard what David said the last time in his previous answer, everything but give us the case citations. And if you ask him that, he can give those too. His familiarity with doctrine is incredible.
Nico: Oh, I’m well-aware. Yeah.
Ron: Yeah. But what I was about to say is, if I’m correct in that the new ticket to ride is free speech and religious freedom, if that’s true, imagine a situation where somebody owns an Airbnb, and they advertise that they will not rent to gay couples. They just add verifies that, “Gay couple, we will not rent to.” Now, that’s a speech cite. I’m not talking about the conduct. All right. I’m just talking about the speech. All right. Would that –
Nico: When you say “conduct,” they would actually rent it? They just advertise that they wouldn’t.
Ron: Yeah, I mean, conduct is another matter. But –
Nico: Because the difference between the flowers and the bakers ... and the candlestick makers, no ... and the designers –
Nico: – is that there’s the argument being that there’s some sort of artistic element, right, that goes into it.
Ron: Right. Right. But still, it’s –
Nico: In a way that there isn’t when you’re renting out just your home.
Ron: But also that they’re being compelled. So, it is a pure speech case.
You put on your website, your Airbnb, you’re not gonna rent to gay couples. And I’m just talking about the speech. I’m not talking about the implementation. And if somebody were to challenge that against an anti-discrimination statute – because you gotta get the state action involved, so there’s an anti-discrimination statute – I don’t know that that wouldn’t be protected. If I’m right about how the Court goes in this 303 Creative v. Elenis case, then I think it would be subject to a First Amendment challenge.
David? And get back to the test that we were talking about.
David: Yeah. And I fear that that may be correct. Masterpiece, I view that as a case where the Court sort of ducted a lot of the underlying issues because of the just overt religious hostility by the local Colorado commission against I guess it was Jack Phillips. That’s what the Court sort of put their hat on was the religious hostility against him. And I didn’t glean many large principles out of Masterpiece, and I think that’s why the Court has taken this most recent case, to flesh a lot of this out.
Nico: Yeah. And you beg a couple of questions in your law review article that I kinda wanna go through systematically. You ask: How has the Roberts Court wielded its constitutional power in the First Amendment arena? Would you say this kind of line of cases or this line of issues that you’re seeing moving forward, or you anticipate seeing forward, is one of the ways the wielded it’s constitutional power in the past? Or is this kind of a new direction for the court?
David: I think it may be a new direction.
Nico: Because of the new makeup of the Court?
David: I think so. The Court’s got position, a lot of it’s luck of history, right. President Carter didn’t have any Supreme Court appointments, but President Trump had three. Sort of accidents of history on court composition. I think that Ron has got his finger on the pulse that this is gonna be an area.
But I think taking a step back of areas where the Roberts Court, I guess, is not protective is when sometimes we view the government, not as sovereign, but the government as employer, government as warden, or the government as educator. Although, Mahanoy was a nice exception to that.
I think one of the great blots of the Roberts Court free speech record is Garcetti v. Ceballos 2006. And I think it’s a blot on Justice Kennedy’s free speech record. That’s the case where Kennedy creates a new categorical rule where he said, when public employees make statements pursuant to their official job duties, the constitution doesn’t insulate them from discipline.
Basically, if a public employee speaks pursuant to his or her official job duties, there is zero First Amendment protection. Doesn’t matter how important the speech is. Doesn’t matter if it’s the purest of whistleblowers. Doesn’t matter if the employee is contributing to the marketplace of ideas. Doesn’t matter if the employee is incredibly sympathetic or the speech is incredibly valuable. It’s [inaudible – crosstalk] [00:33:08] broad, categorical rule.
Nico: But they punted, right, on – they punted on college faculty, right?
David: Well, there are two circuits that have not applied – at least two – that have not applied Garcetti to – maybe three now.
Nico: But was it Garcetti where they had it in the footnote, it said, “We don’t reach the question had how this applies to –”
David: Yes, because Justice Souter in his dissenting opinion said, wait is second, does this apply to university faculty when they’re involved in scholarship and teaching? And Kennedy just ducted that. But Garcetti is just an awful opinion I think.
Now, the Court cut back on that in Lane v. Franks in 2014 I think it was. And Sotomayor actually, her one bright spot where she wrote that opinion where a public employee who testified truthfully in court got subpoenaed, and court testimony was not a regular part of the employee’s duty. She created an exception to that and kinda rooted us back to Pickering v. Board of Education, which is kind of the Tinker of public employee free speech rights. But I view that as a situation where the Roberts Court is not very protective of speech.
So, we had a symposium that Ron also I guess – well, Ron, I think, get all these luminaries to come in. There was a symposium at Brooklyn –
Ron: I was the only luminary there.
David: And I guess we were by Zoom. But I think Erwin Chemerinsky was one of the individuals that Ron got to come speak. And Dean Chemerinsky’s very critical of the Roberts Court and its free speech record I think primarily because of some of these cases like Garcetti where the Roberts Court emphasizes the governmental power to control. I agree with that part of it. I don’t like the Garcetti decision at all.
Ron: If you wanted to see a flip ... I mean, you’re a government employee. You’re speaking. And what are your free speech rights? As David has just pointed out, there’re virtually none. Right. But imagine this. What if the government employee was expression a religious view? What if you put that in the blend? I suspect you may well get a different result. It wouldn’t surprise me if you did. And I think it just goes to show that even the most categorical doctrines can be fluid in the right context.
By the way, I think another important area – and it’s just gonna happen – I think it has less to do with ideology than just the world as it’s evolving. But we’re going to see more and more cases – we’re starting to see some of them, Paul Clement representing Facebook and others – involving the new communications technologies. I think we’re gonna see definitely a whole line of cases there. Right now, almost 10 percent of all stories written by Associated Press are done by algorithm.
And so, the question is, is when you have that sort of thing, when you talk to your phone, right, and just say “Siri” or “Alexa” or you’re talking to your car, is that communication? Is it governed by the First Amendment? How did you determine those cases? I think we’re gonna see a lot more.
And we’ve also seen the whole social platforms. When you have the president using a social platform to communicate official communication, what happens to the state action doctrine? Now, we saw the state, the Second Circuit in that case involving Donald Trump, rule that there was state action and it is governed by the First Amendment. The Supreme Court in that case was mooted out.
But I think we’re gonna see a lot more social media, communication technology. It just has to happen. Because – one last thing – the relationship between free speech and the mode of communication is essential. And let me give you one example.
When the drafters wrote the First Amendment and they talked about the press, they didn’t mean – and I’m here drawing on a Pennsylvania Law Review article by Eugene Volokh – they didn’t mean the press as an institution. They meant the press as a technology. It was that technology that made the protestant reformation possible.
Another example. You have Miller v. California, obscenity. Is obscenity protected by the First Amendment? Every law student can tell you that. No. Well, that’s half true. Because with the advent of the internet, as a functional matter, obscenity became legalize except for kiddie porn. There’s more obscenity now than ever before in the history of this country.
So, it just shows how technology can, if you will, override doctrine. And I think in the area of sexual expression, that’s just a wonderful example. So, I think we’re gonna see more, a lot more, of this.
David: One thing I just thought at Ron’s great comments –
Nico: You guys are patting each other on the back too much. I wanna see some criticism here.
David: But, no, I’ve never bridged these two so thing with regard to new communications. But Chief Justice Roberts has also been at the forefront of the cell phone Fourth Amendment cases. He wrote the Court’s main opinion in Riley v. California, which is a 2013 decision that essential says, before the police can search a cell phone, they have to get a warrant.
Nico: I actually have that as my background on my cell phone. It’s, “Get a warrant, Riley v. California.”
David: And then he also wrote the Carpenter case I think from 2018, which was another cell phone case. So, he’s been protective at least in the Fourth Amendment with regard to digital communication. But I’ve never ever thought about those two together ever.
Ron: There’s your next article, David.
Nico: So, we’ve talked a little bit about, just very little bit – and maybe it’s worth revisiting Citizens United – we’ve talked about Garcetti. Mahanoy a little bit. David, what do you think are the two most important First Amendment cases from the Roberts Court? And what do those cases tell you about how it wields its constitutional power in that area?
David: Oh, boy.
Nico: I’m assuming both of you were gonna say Citizens United.
David: Yeah, probably Citizens.
Nico: Maybe we just put that aside.
Ron: I wouldn’t say that.
Ron: I think there’s a bigger one, and it’s just not as sexy. And it has to do with – what is the predecessor to City of Austin v. Reagan National Advertising?
David: Oh, yeah, Reed v. Town of Gilbert, what Adam Liptak identifies as the “sleeper case.”
David: Yeah, Reed v. Town of Gilbert takes us back. It was a 2015 decision that focused on town in Arizona that treated signs differently whether they were political signs or temporary directional signs or I’d ideological signs. And the Court unanimously invalidated the Arizona law because it was full of content distinctions. But that’s where you have that divide on the Court.
Justice Clarence Thomas writes the opinion where he said, look, if it’s facially content-based, it’s content-based, even if the underlying purpose isn’t to discriminate or against the underlying content, I suppose. And then Kagan writes the concurrent opinion. And that’s where I think that we have to have some fleshing out of how exactly are we going to apply the content-discrimination principle. Are we take the Thomas view, or are we gonna take the Kagan view?
Ron: Campaign finance gets a lot of attention. But it is in many respects – and, Bob Corn-Revere, if you’re listening to this, I’m not saying in all respects – but in many respects cabined, it pertains to a particular type of speech. Yes, it has spillover effects and affect other areas of speech. But it’s a good part cabined to a particular type of speech. Content discrimination applies across the board, so its potential, its potential reach, is substantially greater.
So, if you asked me what was the most important one, I would probably – you know, I might wanna revisit it – but I’d say probably the Reed case, and particular what we’re gonna see in City of Austin v. Reagan National Advertising. I think that sleeper case, as Adam Liptak referred to it, could be and may well prove to be the most important and long-lasting and broadly applied doctrine of the Roberts Court.
Nico: How could that have a significant effect on – what are the hypotheticals or implications that could come from taking either the Roberts or the Kagan view, David?
David: Well, if you take the Thomas view –
Nico: Or the Thomas view, excuse me.
David: Yeah. If you take the Thomas view, they’re all sorts of laws that have content distinctions. That’s why was it Alito that wrote or warned that we’re gonna turn the Court into the veritable sign board review. I mean, all almost anything has content distinctions. So, there is –
Ron: What is unprotected speech, other than content? Right. You say certain areas of speech are protected, others aren’t. Well, that’s content. If every single decision that had to do with content discrimination was unconstitutional and a bridge to First Amendment, my god, the First Amendment could apply to everything. This is a horse that would never stop running. And I think, as David said, the real challenge is, where do you draw the line?
David: Yeah. We go back and it was Justice Marshall. I think Ron already mentioned it was Justice Marshall in Chicago Police Department v. City of Mosley. Above all else, the First Amendment means the government not restrict expression because of its message, its ideas, its subject matter, its content. But do we take the literally? Well, Justice Thomas has taken that quite literally and applies that with a lot of vigor.
Now, Thomas also – now, this is in a Rehnquist Court decision – back in 44 Liquormart v. Rhode Island in ’96, he wrote a concurrent opinion where he essential says, “We need to end this second-class treatment of commercial speech.” A subject that Ron has write about for decades. But I think that in certainly areas, in certainly areas, Justice Clarence Thomas is a very forceful advocate of the First Amendment, and in other areas, he wants to overrule Tinker.
Ron: The irony with Thomas is –
Nico: Sullivan, yeah.
Ron: The irony with Thomas, Justice Thomas, is on the one hand, he may be the author or authors of the most significant First Amendment opinions in the area of speech in the Roberts Court. On the other hand, contrary to what is often said, other study proves that he’s not really a reliable and consistent defender of free speech principles. So, you have this kind of dichotomy.
Nico: Who was the most reliable? I say was because it could be a past justice. Or is? Is it Roberts? Or was it Kennedy?
Ron: Well, certainly Roberts’s record is more speech protective than Kennedy’s. If you go back, when you have people like William O. Douglas, right, Douglas is gonna be a hard one to beat. Hugo Black started out with a great record, and then he kinda went south toward the end had his career. Of course, there was Brennan. But it's hard to imagine anybody with a more protective and consistent, not necessarily influential, free speech record than William O. Douglas.
Would you agree?
David: I agree. I agree. And Justice Thurgood Marshall doesn’t get much credit, but he had a very consistent record in free speech cases. But I definitely agree with Ron.
I tell you something else that’s interesting in doing this study. Had written this down as something to hopefully talk about, is Justice Alito and the free speech doctrine. Justice Alito writes Pleasant Grove v. Summum, which is the case from 2009 where the city in Utah has a 10 Commandments monument in the public park, but they’re not willing to place a monument of the Seven Aphorisms of Summum. And Justice Alito explains that that’s government speech.
But then he writes a very strong dissent six years later in Walker v. Sons of Confederate Veterans, where he says that specialty license plates are not government speech the majority said that they were. And he said, look, if a reasonable observer sees a vehicle with a specialty license plate, he associates it more with driver/owner of the vehicle than with the state.
And then it was Alito that also wrote very significantly in the Tam case, where he says, look, we’ve got to be very careful about applying this government speech doctrine because it could take a capacious bite out of the First Amendment. Right. That it has to be narrowly cabined.
And so, I think that even though Alito at times when he was a lone dissent in Snyder v. Phelps and maybe Stevens as well – but his relationship with the government speech doctrine is very interesting. And there is a government speech doctrine on the Court’s docket, the Shurtleff v. City of Boston case. And so, to me it will be very interesting to see if Justice Alito continues to take an active role when it comes to when is something government speech.
And for the listeners, this is so important for First Amendment jurisprudence because, if something is deemed government speech, there’s no First Amendment challenge. That ends the First Amendment challenge. And that’s sort of an interesting play.
I think another area too – I wanted to mention this because I’ve been on the show with Nico about true threats. That’s a doctrine that desperately needs clarification from the Court. And I would hope, particularly with the advent of online threats, I think that that’s something to look for too, is we need clarification from the Supreme Court on that doctrine.
Ron: Speaking of the Supreme Court – and I’ve been saying this for years to students – the First Amendment isn’t simply about what the Supreme Court does. The Supreme Court is about the culture of free speech. And let me give an example of that.
Perhaps the biggest free speech issue, the one that comes up more than all the rest, combined, more than campaign finance, more than sexual expression, more than government speech, is college campus free speech. Right. There’s been hundreds of cases, all right, involving that. And there’s been a number of situations where there was a threat, and then the threes was contested and it didn’t go to court.
And FIRE, Foundation for Individual Rights and Education, I get to say what I want whether I start a fire or I put one out. That area of the law has been shaped first and foremost by FIRE, without really any meaningful intervention by the Supreme Court. In fact –
Nico: Yeah, we’ve never been to the Supreme Court.
Ron: Right, that’s because you keep winning!
Nico: Yeah, it’s a problem. Yeah. In a certain sense.
Ron: By the way, David, this another area for a great law review article because this jurisprudence has been determined – I was gonna say largely – entirely by lower courts and litigators like FIRE and Bob Corn-Revere and others litigating these cases. That body of law and what is happening in terms of regulation of speech on college campuses is not being defined by the Supreme Court. I think that’s fairly significant.
David: Yeah, I agree.
Nico: Are there any other cases that you think, before we wrap up here, from the Roberts Court that you think are worth highlighting that we haven’t covered yet as being significant or a place where the Court has demonstrated that it’s pretty hostile to certain First Amendment claims? We’ve spoken about Garcetti already and the employee speech doctrine.
Ron: When it comes to national security cases, I don’t know what to make of the Court. I wouldn’t wanna bring [inaudible] [00:51:14] free speech is defined a lot about by the culture. And I think as we see now more and more speech by government officials and by public figures where there are blatant falsehoods, I think that may cause the Court to reevaluate either the public’s – I don’t think they’ll reevaluate New York Times v. Sullivan, but I did think they my revisit the public figure doctrine in the context of defamation. I could see that happening. And here, it’s an area where both liberals and conservatives might well want the Court to do that.
What is your sense of that, David?
David: Yeah, I agree. I agree.
There’s one other area they haven’t talked about in a while, but prisoner rights. It’s not a court that’s very sensitive to prisoner rights. I mention that because if you do weekly searches on the First Amendment, by far, the most number of First Amendment lawsuits are filed by prisoners.
And this is an area where, going back to what Ron said earlier, Justice Marshall, Justice Thurgood Marshall, was a justice that would actually look closely at free speech claims by prisoners. His concurrent opinion in Procunier v. Martinez is just beautiful, where he talks about the human spirit and whatnot. And there is nobody on current Court that I’ve seen that seems to be sensitive at all to prisoner free speech claims.
Nico: Well, Justice Marshall had a defense background, right. So, it might suggest that –
David: He certainly was a criminal defense attorney in certainly cases, very effectively. And I don’t see that. I guess Beard v. Banks was the decision. It was way back in the earlier years of the Roberts Court. I think in 2006. But the Court was not protective at all there.
Nico: Well, if she’s conformed, you might have Ketanji Brown Jackson with her background as a public defender who might be more inclined to consider First Amendment claims on behalf of prisoners. I think it’s worth briefly discussing as we close out here what, if anything, we can say about Ketanji Brown Jackson’s thoughts or opinions on the First Amendment cases, if she has any, and how that might shape the Court.
Ron: Well, David Keating over at the Free Speech Institute – and I refer people to it – has just done a study of her very, very, and understandably, limited work in this area. And they say with some hesitation, and it’s entirely understandable that they would be hesitant because there’re so few cases, and there’s no really extended decisions.
Nico: That’s really the case with the last three justices too, right, Gorsuch, Kavanaugh, and Coney Barret. There wasn’t much to kind of suggest how they might come down on some of these cases, at least the speech cases.
David: I think Justice Gorsuch is gonna prove to be a First Amendment force in the future. He’s got a very interesting writing style. He’s able to inject a lot of style and flair in his writing while also maintaining his clarity, which is an exceedingly difficult thing to do. But he’s starting to be a force I think. You look at a couple of free exercise opinions, some of his concurring opinions, one of his opinions on the retaliatory arrest case. I think that he is going to contribute quite mightily in the coming decades. That’s a prediction I'm making.
Nico: But, Ron, you say there’s really nothing we can say definitively about Judge Ketanji Brown Jackson?
Ron: Well, so far from what little we know, she seems sympathetic to free speech principles. But the words are as little as given the little we know.
Ron: In fact, as we were talking about John Roberts earlier, could you have seen anything? For that matter, who would have ever seen Hugo Black? Who would have seen that train coming? Just like nobody. So, there are situations. And so, I don’t know. But in terms of her free speech record, the current nominee doesn’t have to do much to beat Justice Breyer’s free speech record.
Nico: Yeah. The Court in a certain sense according to your guys’ normal analysis lost its most hostile member when it comes to First Amendment issues, right?
David: Yeah. You never can predict. I don’t know his record – I haven’t studied it – but Justice Harlan II –
David: -- I mean one of the greatest First Amendment opinions of all time, Cohen v. California. He wrote that. He’s kind of the conservative on the Warren Court for many years, right, judicial restraint. That is a beautiful First Amendment opinion, so you just never know, right.
Ron: Wasn’t there the story when the Court used to – and I think I recall reading this; maybe it was in The Brethren – when the Court used to have the obscenity cases and they’d go in the basement and watch them. And Hugo Black wouldn’t go because he thought it was protected.
And at that time, at one point, Harlan’s eyes were failing, and so one of the other justices would kind of tell him, give him a kind of blow by blow description. And he would say – the way he spoke, although he was born in the United States, he would say, “Extroord-nary. Extroord-nary.” So, they don’t watch those films in the basement anymore.
David: Is that a good tie-in to do the show on sexual expression?
Nico: Yeah, coming soon. Coming soon: The justices in the basement of the Supreme Court watching porn. Whatever.
Ron: That would make a great Lenny Bruce routine, wouldn’t it? He could really go to town with that and then some.
Nico: Well, I think we’re gonna leave it there guys. We’re at an hour. Fascinating stuff. John Roberts is, what, 67. So, there’s a good chance we’ve got another decade or two of him as the chief justice left. So –
Ron: But you never know when Fortuna knocks on your door.
Ron: You never know whether or not to answer it because she may be there to give you good news, and she may be there with a dagger ready to stab you in the heart. So, you never know.
Nico: I remember waking up and seeing the Scalia news, right.
Nico: You just ... you never know. But he’s a relatively young man. He’s 67.
Nico: So, the actuarial math would suggest that we have more years yet from John Roberts.
So, I appreciate you guys doing this. I learned a lot from your Brooklyn Law Review article. Again, the article is “The Roberts Court – First Amendment Free Expression Jurisprudence: 2005–2021.” Ron, Dave, thanks again for coming on the show.
Ron: Thank you. Thank you for having us. David, always good to be with you.
David: Yes, Ron. Thank you so much.
Nico: A reminder that David is an assistant professor of law at Belmont University and a Justice Robert H. Jackson legal fellow for FIRE. And Ron is a First Amendment scholar, the author many, many books and many law review articles as well. And he’s the editor of the weekly and indispensable First Amendment News newsletter, which you can subscribe to on FIRE’s website, thefire.org. It comes in your inbox every week and gives you the play-by-play of what’s happening in the First Amendment community.
This podcast, as you all know, is hosted, produced, and recorded by me, Nico Perrino, and edited by my indispensable as well colleague Aaron Reese. You can learn more about So To Speak by following us on Twitter, twitter.com/freespeechtalk, or liking us on Facebook at facebook.com/sotospeakpodcast. We take feedback if you have any at firstname.lastname@example.org. Again, that’s email@example.com. We also take reviews, best way to get new listeners to our show. I appreciate anyone who leaves a review.
And until next time, I thank you all again for listening, and I thank David and Ron for coming back on the show. Cheers, everyone.
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