Supreme Court and Free Speech

One of the broad themes of the Roberts Court has been an expansive interpretation of free speech rights (best exemplified by its campaign finance cases).  Over the past seven terms, the Supreme Court has heard twenty-four cases with some free speech aspect.  Despite the public perception, the Supreme Court has not uniformly held in favor of free speech (free speech only having clear wins in 14 of the twenty-four cases and partial wins in 2 of the twenty-four cases).  This term, however, was the roughest term for free speech advocates since at least 2009.

This year had four cases that involved some free speech aspect — ending with only one clear win for free speech and one partial win.  The partial win was Elonis v. United States.  Elonis involved the federal law on internet harassment.   While much of the argument in this case focused on the free speech aspects of internet communication, the Supreme Court ultimately decided the case on more traditional criminal law grounds — holding that (as with most crimes) this offense required the jury to find that the defendant intended to commit the criminal act (here harassing the victim).  The requirement of intent will give some protection to innocent speech.  By deciding it on intent, the Supreme Court avoided discussing when speech goes too far.

The one clean win was in Reed v. Town of Gilbert.  Reed was in some senses a two-fer — involving both free speech and discrimination against religion.  The town has a sign ordinance that generally requires a permit for signs, but exempts certain categories of signs.  Each category has a different set of rules.  The Supreme Court found that these categories were based on the content of the signs.  Because the categories were content-specific, they did not qualify as valid “time, space, or manner” rules and were subject to strict scrutiny — a standard that in most cases means that the government loses.  (While all members of the Supreme Court agreed that this ordinance was invalid, there was a 5-4 split on the proper way to analyze this type of regulation.)

The two losses for free speech advocates came in Williams-Yulee v. The Florida Bar and Walker v. Texas Division, Sons of Confederate Veterans.  Williams-Yulee was one of the few campaign finance cases in which the Supreme Court upheld the restriction — a limit on the ability of judicial candidates to personally raise funds.  The Supreme Court justified this restriction (in a 5-4 decision) on the theory that judges are different than other offices.  Because this decision was based on the unique nature of the judicial office, it is unlikely to pose much of an obstacle to future decisions gutting campaign finance law.

Walker involved a state specialty license plate program.  In a 5-4 decision (the one case where Justice Thomas joined with the four liberals), the Supreme Court found that the license plates were a form of government speech and, thus, states had the right to choose which messages could be placed on the license plate.  While there is a limited exception requiring the government to permit speech on government property when that property has become a public forum, the Supreme Court found that the specialty license plate program had not transformed license plates into a public forum.

As with other losses over the past decade, the approved restrictions on free speech in this term’s cases are very, very narrow and fact-specific.  We already know that the upcoming term will have at least one free speech case (involving mandatory union dues).  If past is prologue, there is a very good chance that the court will find for the “free speech” rights of individuals and require unions to get express consent before spending dues on political speech.  (Current law requires individuals to opt-out from assessments for political speech.  The petitioners want to change that law to opt-in.  Almost uniformly, attempts to pass opt-in legislation has failed both nationally and at the state level.)

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