- - Monday, July 20, 2015

In its first decade, the Roberts Court has been very protective of freedom of speech, except when the institutional interests of the government are at stake.

The result has been that those who most need the protection of the Constitution such as whistleblowers, students, prisoners, and others who are politically vulnerable are least likely to have it.

At the same time, the Roberts Court has strengthened the speech rights of corporations and weakened those of unions.

In many cases, the Roberts Court has ruled in favor of free speech, even when the expression is repugnant.

In United States v. Stevens (2010), the Supreme Court declared unconstitutional a law that made it a federal crime for people to sell, distribute, or possess depictions of animal cruelty.

The government claimed that this was an important way of stopping so-called “crush videos,” where animals were harmed in the making of films.

The Court, 8-1, declared this unconstitutional and made clear that the government cannot stop speech on the ground that it is violent or distasteful.

In Snyder v. Phelps (2011), the Court, again 8-1, held that members of the Westboro Baptist Church could not be held liable for their highly offensive messages at funerals of those who died in military service.

The Court emphasized that the government cannot punish speech or create liability just because it is offensive, even very deeply offensive.

In Brown v. Entertainment Merchants (2011), the Court declared unconstitutional a California law that made it a crime to sell or rent violent video games to minors under 18 without parental consent.

The Court emphasized that violent speech is protected by the First Amendment and that the government failed to prove that there is a causal connection between playing video games and violent behavior. In these, and many other cases, the Roberts Court ruled in favor of freedom of speech.

But it is a very different result when the institutional interests of the government are involved. In those areas, the Court gives great deference to the government and little protection to speech. For example, in Garcetti v. Ceballos (2006), the Roberts Court held, 5-4, that the First Amendment provides no protection for the speech of government employees on the job in the scope of their duties. In other words, a government employee who reports misconduct as Richard Ceballos did can be disciplined or even fired and is entirely without recourse under the Constitution.

In Beard v. Banks (2006), the Court upheld a Pennsylvania prison regulation that prohibited inmates in maximum security facilities from having access to any printed materials. They could not have newspapers, magazines, books, or even family photographs. This astounding restriction on speech was upheld as constitutional.

In Morse v. Frederick (2007), the Court ruled that a student could be punished by a high school for displaying on a public sidewalk at a school event a banner saying, “Bong Hits for Jesus.” The Court denied First Amendment protection even though the speech was not disruptive of school activities and unlikely to have the slightest effect.

Yet another example of deference to the government was in Humanitarian Law Project v. Holder (2010), where the Court concluded that individuals could be punished for providing material assistance to foreign terrorist organizations when all they did was provide information on how to use international law for peaceful resolution of disputes and for receiving humanitarian aid. The Court stressed the need for great deference to the government.

There is a striking difference between the Roberts’ Court’s general protection of speech and the absence of protection when the interests of the government as government are at stake. The other disparity is in the Court’s protection of corporate speech and its restrictions on unions. Citizens United v. Federal Election Commission (2010) is one of the most important decisions of the Roberts Court. It held that corporations have the right under the First Amendment to spend unlimited amounts from corporate treasuries to get candidates elected or defeated. But in Knox v. SEIU (2012) and Harris v. Quinn (2014), the Court has limited the ability of unions to collect dues, even to support collective bargaining, from non-union members. This greatly weakens the political influence of corporations. And the Court has granted review in a case for next term, Friedrichs v. California Teachers Association, that could go even further in this regard.

The Roberts Court thus has a mixed record with regard to freedom of speech. The only safe prediction is that there will be a great many more First Amendment decisions from it in the years ahead.

Erwin Chemerinsky is Dean and Distinguished Professor, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.

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