The Roberts Court Has Been a Free Speech Champion

Liberals and others will often find fault with the court, as well as Trump. But thanks to the justices, they will have a wide berth to complain.

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Ron Sachs/CNP/AdMedia/Newscom

Barack Obama had his share of poor decisions and outright failures. One of his worst moments came during his 2010 State of the Union address. With six justices seated in front of him, he upbraided the Supreme Court for a decision on campaign finance regulation.

"With all due deference to separation of powers," he said, "last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections." It was a rude breach of protocol, inducing Justice Samuel Alito to shake his head and mouth, "Not true."

Obama's first sin was being disrespectful to justices who were there out of respect to his office. His second was a bad prediction. The legendary First Amendment lawyer Floyd Abrams has found that of the $2.76 billion raised in the 2016 presidential election, corporations and other businesses provided only $67 million—2.4 percent. Finally, Obama failed to recognize the sound principles underlying the decision.

The Citizens United decision has been portrayed by liberal critics as proof that under Chief Justice John Roberts, the court has become a captive of business interests and right-wing ideologues. But Brooklyn Law School professor Joel Gora, who has served the American Civil Liberties Union as a staff attorney and longtime member of the board of directors, says they are mistaken.

That ruling, he writes, is part of a commendable but unsung pattern. Over the past decade, Gora argues, "the Roberts Supreme Court may well have been the most speech-protective Court in a generation, if not in our history."

He's not alone in this conclusion. Abrams told me the Roberts court has gotten some decisions wrong, but "taken as a whole, it has rendered First Amendment-protective decisions in an extraordinarily broad range of cases, and it deserves great credit for doing so."

Geoffrey Stone, a First Amendment scholar at the University of Chicago Law School who has fiercely criticized the campaign finance ruling, says, "The Roberts court has given more protection to free speech across a larger range of areas than any of its predecessors have—although sometimes unwisely."

Citizens United, argues Gora, has been unfairly maligned. "Here you had a law which made it a crime to put out a movie criticizing a major candidate for the presidency of the United States," he says. The First Amendment, wrote Anthony Kennedy, "prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

Critics say the conservative justices saw it that way because corporate spending tends to favor conservative causes (see: Koch brothers). Some other free speech rulings, says Stone, could also be ascribed to a rightward bias—such as invalidating rules restricting protests at abortion clinics and overturning a law allowing doctors to keep private the medicines they prescribe.

But as Gora notes, many of the court's First Amendment decisions haven't followed that track. It struck down a federal law making it a crime to falsely claim to have won military medals and a California law barring the sale of violent video games to minors.

A court awarded $5 million to the parents of a Marine whose funeral drew demonstrators with signs bearing such offensive messages as "Thank God for dead soldiers." The Supreme Court said the verdict violated the protesters' freedom of speech.

It also ruled against a George W. Bush administration policy requiring overseas groups getting AIDS prevention funds to adopt "a policy explicitly opposing prostitution." None of those decisions fit the policy preferences of conservatives.

The court has sometimes gone wrong on free speech. It upheld a public high school's suspension of a student who brandished a sign saying "Bong hits 4 Jesus," which it took to be a pro-drug sentiment, at a school-supervised event. The court said public employee whistleblowers have no First Amendment protection for anything they say "pursuant to their official duties."

For the most part, though, the court has been a force for freedom of expression. Gora thinks that will be reinforced by the arrival of Neil Gorsuch, who shares the general approach of the court's conservative wing. The new justice indicated in his confirmation hearings that unlike Donald Trump, he has no desire to make it easier for public figures to win libel suits.

Liberals and others will often find fault with the court, as well as Trump. But thanks to the justices, they will have a wide berth to complain.

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  1. Here we go commending bureaucrat justices for doing their jobs and protecting the 1st Amendment.

    I guess if pats on the back are required so the justices don’t undermine the 1st Amendment, then so be it.

    1. Surely “First Amendment scholar” Geoffrey Stone himself would agree that just as long as the Court ? contrary to the foolish, liberal decisions of the UN Human Rights Commission and the European and African courts of Human Rights ? carefully abstains from ruling that harm to “reputation” is never appropriately punished by jail, some of its other so-called “free speech” decisions may be tolerated. In this regard, let us celebrate the obvious fact that none of the justices would ever think of defending the outrageous “First Amendment dissent” of a single, isolated judge in America’s leading criminal “satire” case. See the documentation at:

      http://raphaelgolbtrial.wordpress.com/

  2. “Not true.”

    Sums up the Obama era quite nicely.

  3. Great column by Chapman.

    1. It’s hard to take it very seriously though. Because if leftard liberal democrat Chapman had his way, Hillary would have won the election, an Obama/Hillary clone would win every presidential election, and we’d end up with nine Ruth Bader Ginsburgs on the Supreme Court. People who believe that we little peons aren’t entitled to free speech; that it only applies to politicians and members of the “elite”, “mainstream” liberal media.

      1. Because Hillary would have had the conservative justices assassinated?

        1. No, because all her appointees would have been scumbags like you.

          1. So your contention is that all of the justices except for Ginsburg were going to retire over the next 4-8 years? That’s dumb even for you, Simple Mikey.

            1. Um, his comment included “an Obama/Hillary clone would win every presidential election”. I presume this would cover the years past a Hillary regime.

              1. I guess you could skip over the comment i was replying to, wherein Simple Mikey clarified (for some value of “clarified”) that he was talking about Hillary appointees. But that would be silly.

          2. Which means you can’t take an article commenting on the current court seriously?

      2. This post, on the other hand, is so easy to take seriously

  4. “Liberals and others will often find fault with the court, as well as Trump”

    Not sure what this sentence means.
    1. Liberals and others will find fault with Trump too, or
    2. Trump will also be one of those finding fault with the court

    Further, I’m not sure why Trump must once again make a token appearance in a Reason article.

    1. Well, he is the president. And I think it’s a Chicago Tribune article.

    2. It’s 2, which is the reason for the name drop. It is poorly worded – it should probably be “as will Trump” – but the context makes it clear.

      1. Hmmm. Now the brief HandR article has this in one place only:

        “Liberals and others will often find fault with the court, as well as with Trump.”

        Which would makes it explicitly #1.

  5. The Political Left hates Citizens United because it puts Rightwing organizations on the same First Amendment footing as Leftwing organizations. As every good Progressive Leftie knows that is Just So Wrong. There is a fundamental moral difference between a bunch of Conservative citizens banding together to vent hate on a Liberal Candidate/Victim and a bunch of Leftwing citizens banding to gather to speak Truth to Power. And the Leftwing ranter who is telling you this can’t quite explain it in any way that doesn’t make him look like an asshole, but he KNOWS the difference is there!

    1. They hate it because they have no idea what the actual subject of the case was and have been repeatedly told “corporations can now spend as much money influencing elections as they want, rich people’s votes now count more than yours!”

      1. Yeah, this is the actual explanation. It’s tough to get dumber than partisan tribalism, but most of the folks who hate the Citizens United decision have found a way.

      2. And it’s just about impossible to reason with people who are determined to believe that crap.

        The decision really has almost nothing to do with corporate personhood. No where in the first amendment does it say that speech and press freedom are rights that only individual people have.

        1. Unless we’re talking about unions. Then libertarians and conservatives say they have no rights.

          1. I can make up false stuff too! Watch: “EscherEnigma has any idea what libertarians think about unions.”

            1. Wait, that’s false?

              1. Correct. EscherEnigma does NOT have any idea what libertarians think about unions. That’s why he made something up.

          2. If Unions were, for the most part, voluntary associations, I would be fine with them having rights. But Unions that have made joining the Union a condition of working? They are predatory vermin.

  6. Citizens United, the business, is a lemonade stand. “But corporations aren’t people.” they scream from the rooftops.

  7. totally forgot about the Bong Hits 4 Jesus dude, he got jobbed.

    >>> because corporate spending tends to favor conservative causes

    does it?

  8. If spending money on elections is free speech then why isn’t spending money betting on cockfights also free speech?

    1. the equivalent would be spending money on overturning the law against.

    2. Christ, you fucked up both clauses of this analogy.

      1. Tony isn’t very good at understanding things. He’s occasionally articulate but never smart; always partisan but never because of any principle whatsoever.

    3. I believe you can still place a bet on the outcome of a human boxing match in Las Vegas. You were driving toward point there, Tony, what was it?

      1. The first amendment covers the whole country.

      2. But, by implication, nowhere else. I’ll make a point of remembering that.

        1. (assuming you’re referring to “the first amendment covers the whole country”)
          Well, yes.

          That’s kind of what makes America unique and great. As much as some folks like to bitch and whine about how oppressed we are here in America, we have the most robust Free Speech rights compared to any other country in the world. Go anywhere else and try and pull half the shit you try here and you’ll find out very quickly how lucky you are to be an American.

    4. Spending money on a movie about a candidate is most certainly free speech and/or press. The decision wasn’t about spending money. It was about publishing or distributing material that can be considered electioneering. And that is most definitely a free expression issue.

      1. Kagen would have stopped that.

    5. There are still limitations on money. Corporations (and individuals) can’t make unlimited donations to candidates. What they can do is publish their own election related material. And I don’t see how anyone can deny that that is part of having a free press. It is exactly the same thing as a newspaper editorializing in favor of a candidate or publishing news stories that put a candidate in a favorable or unfavorable light.

      1. Bazing. People do not spend money “on elections,” they spend money on advertising and broadcasting their political positions and arguments. There is no way to argue that that is not speech, or that restricting the money spent or the time it’s broadcast does not restrict speech.

    6. They government was arguing making snd distributing a documentary critical of a candidate was not free speech because it was the same as giving money.

      You say “money is not speech” but the decision you abhor decided that speech was not money.

  9. Hillary was going to get money out of politics. After spending twice as much as Trump.

  10. RE: The Roberts Court Has Been a Free Speech Champion

    “”With all due deference to separation of powers,” he said, “last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.” It was a rude breach of protocol, inducing Justice Samuel Alito to shake his head and mouth, “Not true.”‘

    How dare Justice Alito challenge Dear Leader’s statements!
    A few decades in the gulag will introduce him to what “free speech” means in our socialist paradise.

    1. “How dare Justice Alito challenge Dear Leader’s statements!
      A few decades in the gulag will introduce him to what “free speech” means in our socialist paradise.”

      Funny, but to be fair, that never happened. I think this is exactly why America is so great.

      Would you agree that Obama had a right to say what he did, regardless of whether it was accurate or not?

      1. Dear Leader has a right to say whatever he wants.
        It makes for great comic relief.

  11. Just as long as the Court (contrary to the foolish, liberal decisions of the UN Human Rights Commission and the European and African courts of Human Rights) carefully abstains from ruling that harm to “reputation” is never appropriately punished by jail, some of its other so-called “free speech” decisions may be tolerated. In this regard, let us celebrate the obvious fact that none of the justices would ever think of defending the outrageous “First Amendment dissent” of a single, isolated judge in America’s leasing criminal “satire” case. See the documentation at:

    http://raphaelgolbtrial.wordpress.com/

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