How Big a Friend of Free Speech Is the Roberts Court?

Because it has overturned speech restrictions in several high-profile cases, the Supreme Court under Chief Justice John Roberts has acquired a reputation as especially protective of First Amendment rights. Monica Youn, a Brennan Center Constitutional Fellow at NYU Law School, says the numbers do not bear out this impression:

In its first five years, from 2006 until 2011, the Roberts Court granted certiorari in 29* cases in which a free speech violation was claimed (including the speech, press, assembly, and association guarantees). In these cases, the Court held that that a free speech violation existed in 10 of the cases, and that no free speech violation had been demonstrated in 19 of these cases. Thus, simply looking at the numbers, the Roberts Court has supported a free speech claim in 34.48 percent of argued cases. By way of comparison, as Lee Epstein and Jeffrey A. Segal have shown, from 1953 to 2004, the Supreme Court supported claims of deprivation of First Amendment liberties in 53.95 percent of argued cases.

Breaking that average down, New York Times legal writer Adam Liptak reports that the figure was 69 percent for the Warren Court, 46 percent for the Burger Court, and and 49 percent for the Rehnquist Court. Youn argues that the attention attracted by the Roberts Court's decisions involving violent video games (Brown v. Entertainment Merchants Association), animal cruelty videos (U.S. v. Stevens), funeral picketers (Synder v. Phelps), and political speech by corporations (Citizens United) has skewed observers' perceptions. She characterizes those first three cases as "slam dunks," since there were only one or two dissenters, and she argues that Citizens United allowed disparate legal treatment of unions and corporations that is constitutionally questionable. (As Youn puts it, "Citizens United held that both corporations and unions could spend freely on campaigns from their respective piles, but left in place existing restrictions regarding the amassing of such funds for political purposes that apply to unions, but not to corporations.") Cases where the Roberts Court has rejected First Amendment claims include Morse v. Frederick (which involved a high school student who raised a "Bong Hits 4 Jesus" banner at an off-campus event) and Holder v. Humanitarian Law Project (which involved a nonprofit organization seeking to train terrorist groups in peaceful methods for addressing their grievances).

First Amendment lawyer Floyd Abrams, interviewed by Liptak, takes issue with Youn's method:

Statistics cannot tell the story of the willingness of a court to defend free expression. Cases do. It is unpopular speech, distasteful speech, that most requires First Amendment protection, and on that score, no prior Supreme Court has been as protective as this.

As Abrams notes, that emphatically includes the political speech protected by Citizen United, a decision that triggered a great deal of hyperbolic criticism, not least from the president of the United States. I also think Youn goes too far when she endorses UCLA law professor Adam Winkler's remark that "the Roberts Court strongly protects speech that it likes, while allowing regulation of speech it disfavors." Citizens United lifted restrictions on speech from across the political spectrum, not merely speech by conservatives or Republicans. The venomous sentiments of the Westboro Baptist Church, which not only condemns homosexuals as sinners but celebrates the deaths of American soldiers as just punishment by an angry God, can hardly be counted as speech the justices like. Nor does it seem plausible that the justices are big fans of dog fight videos or Grand Theft Auto.

Still, Youn (along with critics such as Erwin Chemerinsky, David Cole, and Nadine Strossen) provides a useful corrective to excessive enthusiasm about the Roberts Court's friendliness to freedom of speech. As Liptak notes, the Court will soon have two conspicuous opportunities to burnish its image in this area: Tomorrow it hears arguments in FCC v. Fox, which will give it a chance to renounce the increasingly absurd First Amendment distinction between TV channels based on whether their programming travels through "the public airwaves." And next month the Court will consider U.S. v. Alvarez, which raises the question of whether lying about military decorations can be punished as a crime.

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  • Almanian||

    BUT KOCPORASHUNS AREN'T PEOPLE CITIZENS UNITED BRAINWASHING ADVERTISING ZOMGENDOFTIMESLIBERTYFROMEBUTNOTFORTHEEUNIONSAREDIFFERENTSHIT!!

  • Almanian||

    Also - fs! t! i! r!

  • protefeed||

    Using statistics in this context to judge how friendly SCOTUS is to free speech is stupid. Equating a teeny inconsequential case with Citizens United because both are, well, cases, violates common sense.

  • ||

    Semi-OT: Can you imagine how much awesome fucking WIN a Paul-packed Supreme Court could achieve in just a decade? Jesus H Christ.

  • ||

    Fun, freedom, and schadenfreudeliciousness!

  • protefeed||

    Not so sure how libertarian or constitutionalist a set of justices Paul could get past the Senate vetting process, but I would sure like to have Paul picking the nominees and not Obama or the rest of the R field.

  • robc||

    So, he do we want for Paul nominees?

    Does everyone's list start with Brown and Napolitano?

  • robc||

    who do we want, that should say

  • mad libertarian guy||

    Fuck it.

    Me. They should fucking appoint me. N0t because of my legal brilliance and extensive legal training (of which I have exactly zero), but because the Constitution is that fucking hard, and the vast majority of cases can, and arguably SHOULD, be decided by common fucking sense, not someone who will start with the result they want and craft a legal argument to fit the result.

  • GroundTruth||

    Have to disagree mad lib guy. We have a written constitution, so it's a fairly straightforward matter to read the text and answer the question. Of course, that may occaisionally give results we libertarians don't like (ex: A well regulated Militia, being necessary to the security of a free State... sure sounds like a context not supportive of a private right to bear arms).

    Common sense seems to vary from man to man.

  • Scruffy Nerfherder||

    The Dude

  • ||

    The Dude

    While The Dude would clearly lead with a laissez-faire approach, he strikes me as someone with little economic sense. I can see him trying to implement crazy shit, like a federal weed-stamp program or some such shit.

  • ||

    So, he do we want for Paul nominees

    Unless someone got all Pelican Brief on their asses, I'm not sure how many vacancies would open up during his term in office. But I'll be happy to indulge in a little harmless fantasy: my first pick would be Napolitano.

  • ||

    Brown was confirmed by the Senate for the federal bench, so she could make it through, especially with a GOP Senate.

  • Barely Suppressed Rage||

    I think y'all had better be more specific as to which J. Napolitano you want. J for Janet or J for Judge. Because I did a double-take when I saw that, until I realized which one you meant.

  • ||

    I think y'all had better be more specific as to which J. Napolitano

    Well naturally we're talking about Janet, you silly goose! After all she's done to keep us, the flying public, safe from the terrorist scourge, think of the sheer good she could do as a Supreme Court justice! Plus, the Court could sure use a woman who's a real looker, ya know?

  • ||

    The bottomline here is this:

    Statistics cannot tell the story of the willingness of a court to defend free expression. Cases do.

    Other than that, this is a big waste of server space.

  • ||

    but left in place existing restrictions regarding the amassing of such funds for political purposes that apply to unions, but not to corporations

    Because there is no difference in how unions and corporations amass their money. Not one bit.

  • T||

    I'm sure my current employer would love it if we could force everyone to give us money.

    As it is, we have to make do with some of our products being legally required.

  • Fist of Etiquette||

    Picture caption:

    TIME Person of the Year, 2011

  • Eduard van Haalen||

    "I also think Youn goes too far when she endorses UCLA law professor Adam Winkler's remark that "the Roberts Court strongly protects speech that it likes, while allowing regulation of speech it disfavors."...The venomous sentiments of the Westboro Baptist Church, which not only condemns homosexuals as sinners but celebrates the deaths of American soldiers as just punishment by an angry God, can hardly be counted as speech the justices like."

    To people like Winkler, Fred Phelps and John Roberts are both right-wingers (never mind that Phelps endorsed Al Gore and got an award from the NAACP), and all right-wingers are a sinister, undifferentiated "Them."

  • Mr. FIFY||

    The NAACP awarded Phelps? For what??

  • Jeff||

    For hating fags just as much as they do, presumably.

  • ||

    His civil rights legal work. From before he was disbarred, I presume.

    Disbarment
    A formal complaint was filed against Phelps on November 8, 1977, by the Kansas State Board of Law Examiners for his conduct during a lawsuit against a court reporter named Carolene Brady. Brady had failed to have a court transcript ready for Phelps on the day he asked for it; though it did not affect the outcome of the case for which Phelps had requested the transcript, Phelps still requested $22,000 in damages from her.[19] In the ensuing trial, Phelps called Brady to the stand, declared her a hostile witness, and then cross-examined her for nearly a week, during which he accused her of being a "slut", tried to introduce testimony from former boyfriends whom Phelps wanted to subpoena, and accused her of a variety of perverse sexual acts, ultimately reducing her to tears on the stand.[19] Phelps lost the case; according to the Kansas Supreme Court:

    The trial became an exhibition of a personal vendetta by Phelps against Carolene Brady. His examination was replete with repetition, badgering, innuendo, belligerence, irrelevant and immaterial matter, evidencing only a desire to hurt and destroy the defendant. The jury verdict didn't stop the onslaught of Phelps. He was not satisfied with the hurt, pain, and damage he had visited on Carolene Brady.[19]


    In an appeal, Phelps prepared affidavits swearing to the court that he had eight witnesses whose testimony would convince the court to rule in his favor. Brady, in turn, obtained sworn, signed affidavits from the eight people in question, all of whom said that Phelps had never contacted them and that they had no reason to testify against Brady. Phelps had committed perjury.[19]

    On July 20, 1979, Phelps was permanently disbarred from practicing law in the state of Kansas,[19] though he continued to practice in Federal courts.

    In 1985, nine Federal judges filed a disciplinary complaint against Phelps and five of his children, alleging false accusations against the judges. In 1989, the complaint was settled; Phelps agreed to stop practicing law in Federal court permanently, and two of his children were suspended for periods of six months and one year.[20]
  • ||

    Christ on a cracker, where was the fucking judge during that cross-examination?

  • Paul||

    Where was the defense attorney to yell "Objection!"

  • Eduard van Haalen||

    Also from Wikipedia:

    "In the 1980s, Phelps received awards from the Greater Kansas City Chapter of Blacks in Government and the Bonner Springs branch of the NAACP, for his work on behalf of black clients."

  • Eduard van Haalen||

    And my point is that this doesn't in the least prevent Prof. Winkler from making his kneejerk assumption that Phelps and Roberts are fellow-conservatives.

  • ||

    This doesn't help his case either...

    Phelps has run in various Kansas Democratic Party primaries five times, but has never won. These included races for governor in 1990, 1994, and 1998, receiving about 15 percent of the vote in 1998.[33] In the 1992 Democratic Party primary for U.S. Senate, Phelps received 31 percent of the vote.[34] Phelps ran for mayor of Topeka in 1993[35][36] and 1997.[37]

    Awk-ward!

  • Barely Suppressed Rage||

    I agree with Floyd Adams's statement: "Statistics cannot tell the story of the willingness of a court to defend free expression. Cases do."

    Monica Youn's method is bogus - but then again, she's a fellow at a northeastern law school, so in all likelihood quite progressive. They play the same kinds of games with crime statistics and rates of issuance of concealed carry permits to gin up disingenuous and bogus arguments about how concealed carry permit holders cause more crime.

  • Fabius||

    That analysis seems to assume that 100 percent of the cases brought were valid or, at least, that the percentage of valid cases was the same for each court. Either assumption is absurd. If Reason will fly me to their headquarters, I will be happy to give a primer on statistical analysis. This makes at least two significant errors in one day.

  • ||

    Of course the cases are valid, the Sup. Ct. picks which cases to hear, so no anomaly/outlier can enter the equation. Or, maybe I misunderstood you.

  • Larry Jacobowitz||

    "Citizens United lifted restrictions on speech from across the political spectrum, not merely speech by conservatives or Republicans."

    Anyone else reminded of Anatole France? "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

  • Eduard van Haalen||

    If you assume poor=democrats and liberals, and rich=republicans and conservatives.

    We all know how our liberal Democratic president got all his campaign contributions from migrant workers, and none at all from Goldman Sachs.

  • GroundTruth||

    29 has two significant figures, 10 has one (some might allow two, since we are counting discrete events). 34.48 has four sig figs?!?!

    Gods, I wish someone would require that social scientist and economists learn something about basic math! This mindless precision makes them look like the idiots that I suspect they are.

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