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.