- - Monday, July 20, 2015

Chief Justice Roberts’ recent words for a unanimous bench reflect his Court’s protective regard for free speech rights: “the guiding First Amendment principle [is] that the ‘government has no power to restrict expression because of its message, its ideas, its subject matter, or its content’.”

Yet, a report card for the Roberts Court’s eleven years would reflect only a B+ grade for adhering to that standard: enforced in most, but not all, cases.

His Court’s 2010 Citizens United opinion is most publicized for granting corporations (and implicitly labor unions) the same First Amendment right in making political contributions as individuals, partnerships, and non-incorporated associations. The attack on this decision, led by the President, as a 180 change was simply false: it was consistent with its rulings in at least 24 opinions over 70 years. Rather than break new ground, it corrected an unwarranted detour in inconsistent outliers.

Other election financing decisions recognized the obvious: freedom to speak in an election is meaningless without access to the means to communicate the message: money for radio and TV time, rentals of halls for the public to hear the message, and printing and mailing. In incremental decisions, the Roberts Court held unconstitutional contribution limits and limits on a candidate’s expenditures. This Court also rejected a legislative end-run to curtail a wealthy candidate’s self-financing, in authorizing, in that event, a higher limit on contributions for the opponent — legislative pressure to prevent the rich candidate from full utilization of her free speech rights.

One cannot reconcile these election/free-speech rulings with Roberts’ 5-4 opinion this Term denying First Amendment protection to a specific category of election candidates: his Court upheld legislation that prohibited candidates for judge from asking for contributions. The Roberts Court had repeatedly declared “the State has no power to ban speech on the basis of its content;” yet here, blocking specific content was upheld. Roberts rationalized his exception by asserting judges were unique in their need to avoid the appearance of partiality that might arise from asking for contributions. Yet, Roberts allowed that the judicial candidate “can serve as Treasurer of his own campaign committee, learn the identity of campaign contributors, and send thank you notes to donors.” And, according to Justice Roberts, the candidate may also write to potential contributors: “the law does not allow me to ask you directly for a contribution; that can only be done by my campaign committee, but you should know that I am Treasurer of that Committee, I learn the identity of all contributors, and I will send you a thank you note if you contribute.” With this reality, no wonder the popular saying “the law is an ass.”

Beyond elections, the Roberts Court has a similar record of mostly not always siding with free speech. The Court unanimously struck down a town ordinance that imposed more stringent limitations on signs directing the public to meetings of non-profit groups than other groups. It held a violation of free speech (and association) to require all union members to finance political speech by the union leadership. It unanimously invalidated no-free-speech buffer zones around abortion clinics. And it protected the free speech rights of even hateful, disgusting speech adjacent to a hero-soldier’s funeral.

In a different free speech decision, Roberts wrote the 8-0 court ruling, upholding the government’s right to “coerce” colleges into allowing military recruiters their free speech right to communicate to students who wish to hear the message, by conditioning continued government funding on it. In rejecting the colleges’ assertion that this compulsion violated their First Amendment rights to communicate objection to military recruiting, and not to associate with such recruiting, the Court correctly noted that allowing recruiters to speak did not reflect college agreement. Yet, seemingly inconsistently, the Court, 5-4, held that an individual could not express himself through a specialty license plate containing a Confederate flag, because people would look upon it as government speech.

In the spirit of the adage that free speech doesn’t allow you to yell “fire” in a crowded theater, the Court did properly recognize free speech limitations. While reiterating that high school students are First Amendment-protected, it ruled against speech encouraging drug use. Government employees, when speaking as part of official duties, can be disciplined for comments contrary to government policy. And with two dissenters, the Court effectively overruled a 2002 pre-Roberts court decision to hold Constitutional a statute that made illegal the distribution of what appeared to be child pornography. Surprising, however, was the Court’s invalidating a California statute barring sale to minors of violent computer games, without parental permission, suggesting that parents have no free speech say in what children can buy.

Overall, not a bad record, but “not bad” is not good enough for the highest court in the land.

Gerald Walpin is a New York Attorney, formerly a federal Inspector General, nominated by President G.W. Bush and confirmed by the Senate, and is author of The Supreme Court vs. The Constitution (Significance Press 2013).

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