Over at SCOTUSblog, Lyle Denniston writes of the Roberts Court’s continued “fascination with free speech and the First Amendment.” Indeed it is so. Having now decided 31 First Amendment free expression cases and sustaining such constitutional challenges in 14 of them, the Roberts Court has already carved out its own special (and often controversial) niche in the history of our free speech jurisprudence. Du
ring that period, Chief Justice John Roberts has led the way with 11 majority or plurality opinions, followed by Justices Anthony Kennedy and Antonin Scalia with five such opinions each. Only two majority First Amendment free expression opinions have been authored by the Court’s women Justices–Golan v. Holder (2012) by Justice Ruth Bader Ginsburg and Milavetz, Gallop, & Milavetz v. United States (2010) by Justice Sonia Sotomayor. And Justice Elena Kagan’s sole First Amendment free expression opinion is her dissent in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).
Tomorrow the Court will hear oral arguments in the Susan B. Anthony List v. Driehaus case. Assuming that the Petitioners can get past the ripeness issue (which is a First Amendment concern), the case could prove to be yet another important one concerning not only false speech, but also speech expressed in the election context.
Meanwhile, we await a ruling in McCullen v. Coakley, another abortion protest bubble zone case that could obliterate or significantly undermine the Court’s 1999 ruling in Hill v. Colorado. Should the Court sustain the First Amendment claim in that case, Justice Kennedy (who dissented in Hill) might well author the majority opinion.
Against that general backdrop, here is a snapshot of the free expression cases (both First Amendment and otherwise) before the Roberts Court this term.
Decided Cases
[4-1-4: JR] McCutcheon v. Federal Election Commission (campaign finance, aggregate expenditures)
[9-0: JR] United States v. Apel (military base & protest: statutory interpretation)
[9-0: SS] Air Wisconsin v. Hoeper (statutory question re malice)
Cert Granted
Already Argued & Ruling Pending
Jan. 15: McCullen v. Coakley (Mass. abortion protest case, Hill v. Colorado questioned)
Jan. 21: Harris v. Quinn (ripeness question & Abood issue)
Awaiting Argument
April 22: Susan B. Anthony List v. Driehaus (ripeness & false political speech standard)
April 22: American Broadcasting Companies, Inc. v. Aereo, Inc. (copyright re TV programing & Internet use)
April 28: Lane v. Franks (retaliation against public employee & qualified immunity)
Selected Pending Cases: Petition Stage
Risen v. United States (journalists & qualified First Amendment privilege)
Natale v. United States (statutory question re false statements & medical records) (cert. denied: 4-21-14)
Elonis v. U.S. (intent requirement re threats under Virginia. v. Black)
Minority Television Project v. FCC (standard of review re broadcasters transmitting paid political messages — Red Lion questioned)
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Justices Scalia & Ginsburg on the First Amendment
In case you missed it, you can go to YouTube and see Marvin Kalb’s interview with Justices Antonin Scalia and Ruth Bader Ginsburg. The C-SPAN interview focused on the two Justices’ views on select First Amendment free speech and press issues. Here are a few highlights:
Justice Scalia: Re: newspapers: “I don’t read the [Washington] Post.”
Re: NYT v. Sullivan: “I don’t recall whether it was unanimous; I’m not sure it was. [At this point Mr. Kalb interjected: "It was; it was 9 nothing."] Even so, it was wrong. The issue is not whether it’s a good idea to let . . . anybody [Justice Scalia paused here and began his sentence anew] What New York Times versus Sullivan holds is that if you are a public figure — and it’s been a matter of some doubt what it takes to become a public figure, and certainly any politician is a public figure — if you are a public figure, you cannot sue somebody for libel unless you can prove, effectively, that the person knew it was a lie. So long as he heard from somebody, you know, it makes it very difficult for a pubic figure to win a libel suit. I think George Washington, I think Thomas Jefferson, I think the Framers would have been appalled at the notion that they could be libeled with impunity. And when the Supreme Court came out with that decision, it was revising the Constitution. Now, it may be a very good idea to set up a system that way, and New York State [Alabama] could have revised its libel laws by popular vote to say that if you libel a public figure, it’s okay unless it’s malicious. But New York State [Alabama] didn’t do that. It was nine lawyers who decided that is what the Constitution ought to mean, even though it had never meant that. And that’s essentially the difference between Ruth and me concerning a ‘living constitution.’ She thinks that’s all right and I don’t think it’s all right.”
Note: As Justice Scalia is aware, the precise issue in Sullivan involved public officials, whereas the public figure issue was addressed subsequently in other cases such as as Curtis Publishing Co. v. Butts (1967). See Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan 65-107 (2014).
Justice Ginsburg: Re: NYT v. Sullivan: The opinion “is now well accepted. . . .I think the Founding Fathers would have agreed with it in the 1960s.”
Re tweets & Twitter: “A great danger for people who use those devices is you can’t take it back. You know, once you let it out, it’s there for everybody to see for years.”
Re televising Supreme Court arguments: “I think it’s probably inevitable” and “there’s so much pressure for it.” Nonetheless, she was “very much concerned of misportraying” what occurred in court.
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More On Justice Stevens’ Proposal to Amend the First Amendment
If you missed FAN 10, click here for some commentary on Justice John Paul Stevens’ proposal to amend the First Amendment. For a thoughtful review of Justice Stevens’ newly released book, Six Amendments: How and Why We Should Change the Constitution, see Richard Hasen,”Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens,” The Daily Beast, April 20, 2014.
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