The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism
By Eric Segall
I’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas.… People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.
According to a study by Ronald Collins and David Hudson, between 2005-2020, the Roberts Court decided 56 free speech cases. The Chief authored 15 majority opinions. The four liberals on the Court, Justices Ginsburg, Breyer, Kagan, and Sotomayor, cumulatively wrote a total of 15 free speech majority opinions. Retired Justice Anthony Kennedy, the swing vote from 2005-2018, wrote seven. The Chief wrote only one dissent in those 56 cases and joined two others. In 95% of these cases, Roberts was in the majority. He has been from the start, the "Free Speech Justice."
What kind of speech cases are we talking about? Has the Roberts Court been protecting political dissenters, racial justice protesters, and censorship warriors? Not so much.
First, a number of these cases can only be explained by the flimsiest of constitutional rationales--the slippery slope. The Roberts Court invalidated a state law banning the sale of violent video games to children, a federal law banning depictions of animal cruelty, including so-called "crush videos" where animals are effectively tortured for sexual pleasure, and civil liability for the highly inflammatory speech of the Westboro Baptist Church, which protested near a military funeral through homophobic and other forms of hate speech. Whether these cases are right or wrong as a matter of policy, there is no plausible originalist basis for the decisions and the Court did not justify these cases on originalist grounds. The Founding Fathers were concerned with prior restraints on political speech and that's about all. As Jud Campbell has documented in an excellent Yale Law Journal article, the Court's robust free speech doctrines can only be justified by reference to living or common law constitutionalism. Yet, it should be noted that so-called originalist Justices Antonin Scalia and Clarence Thomas joined all three of these opinions (except Thomas dissented in the violent video games case).
Then there are the truly inexplicable 5-4 free speech cases that reflect the Roberts Court's overall conservatism more than a desire to protect freedom of expression. In Janus v. AFSCME, in an opinion written by Justice Alito, the Court reversed a 1977 case and held that states could not require non-union public sector workers to pay union dues going to collective bargaining costs because doing so somehow violated their free speech rights. Of course, these non-union workers could say anything they wanted at anytime about any subject. This case was much more about the Court's anti-union preferences than restrictions on speech. And the idea that paying for bargaining-related activities of unions would be considered speech as an original matter is laughable. This anti-federalism decision overturned laws in almost half the states. This is "applying the law" only in the sense that the five conservative Justices' personal preferences equals "the law."
Another tortured 5-4 "free speech" decision (written by Justice Thomas) struck down a California statute that required so-called "pregnancy crisis centers" to post certain information about the availability of free or low cost services relating to pregnancy including abortion. There is of course a right not to speak as well as to speak but these centers purported to be medical or quasi-medical facilities and were constantly engaging in misleading speech. More importantly, the Court in the landmark Casey decision had upheld Pennsylvania requirements that abortion clinics provide all kinds of non-medical information. Nevertheless, the Roberts Court struck down the California law, disingenuously distinguishing Casey on the grounds that it only involved purely medical information (which wasn't true). And, in Mike's own words, Justice Thomas' opinion "contains not a single word about the original meaning of the First Amendment or the Fourteenth Amendment (which makes the First applicable to the states)."
Based on these and many other cases, Justice Elena Kagan has said that the conservatives on the Court are "weaponizing the first amendment." Adam Liptak, the Supreme Court reporter for the New York Times, wrote in 2018 that "the Supreme Court under Chief Justice John G. Roberts Jr. has been far more likely to embrace free-speech arguments concerning conservative speech than liberal speech." According to a New York Times study relied upon by Liptak, conservative speech as of 2018 had won in the Roberts Court 69% of the time while liberal speech prevailed only 21% of the time. Nowhere has this lopsided trend been more true than in the important area of campaign finance regulation.
To the general public and even many lawyers and law professors, the most glaring example of judicial aggression by the Roberts Court in the area of free speech is Citizens United v. FEC. If the Court had simply held that Citizens United, a non-profit ideological organization, had the first amendment right to show its movie about Hillary Clinton shortly before a national election, the decision would make sense and even likely be right. Instead, the Roberts Court used the occasion to announce that all corporations have the same free speech rights as natural persons. This overbroad, anti-originalist holding is totally unwarranted but the reality is that Citizens United isn't close to the worst campaign finance case of the Roberts Court.
In McCutcheon v. FEC, Chief Justice Roberts wrote the majority opinion for the conservatives in a 5-4 case striking down limits on the total amount a person can contribute to political candidates or political action committees. Not surprisingly, the Republican National Committee was a plaintiff in the case, as was a private citizen who wanted to write more in checks than the relevant federal law allowed. The Court equated spending on politics with speaking about politics and also held that the only even legitimate government interest that can support campaign finance reform is stopping direct quid pro quo corruption. That bizarre notion led Judge Richard Posner to write in SLATE the following:
Can so naive-seeming a conception of the political process reflect the actual beliefs of the ... Chief Justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors.... Isn't this obviously a form of corruption?
Not surprisingly, Chief Justice Roberts failed to cite any historical evidence supporting this crabbed view of governmental interests supporting the regulation of money in elections. To be fair, however, the Chief does not self-identify as an originalist. Justice Thomas, who does, wrote a concurring opinion, saying he would overrule the Court's landmark case Buckley v. Valeo and find all limits on campaign contribution unconstitutional. He also failed to cite a single piece of originalist evidence supporting such a ridiculous idea. McCutcheon is a classic case of overreaching living constitutionalism, and Thomas' concurrence is as anti-originalist as any Supreme Court opinion ... ever.
The Roberts Court also struck down the so-called millionaires' amendment that Congress passed which altered contribution limits of political candidates if their opponents spent more than 350,000 dollars of their own money. In yet another 5-4 case split along partisan lines, the Justices stopped Congress from trying to limit money spent on political campaigns and yet again did not even try to justify its onslaught with any reference to originalist materials. Justices Scalia and Thomas did not blink at this common law constitutionalism.
I could go on and on but one more case merits special attention. After a major political scandal, the people of Arizona enacted a state constitutional amendment approving the public financing of state political campaigns. No one was forced to take the public money (which meant not taking any other forms of contributions). If a candidate didn't accept the state's money, and her opponent did, the state would kick in extra money to equalize the funding up to a certain quite modest limit. In Arizona Free Enterprise Fund v. Bennett, Chief Justice Roberts, again writing for the five conservatives, struck down this attempt by the people of Arizona to deal with political corruption. Once again, no originalist sources were cited. Moreover, no one's speech was limited in any way and no candidate's ability to fundraise was limited in any manner unless they voluntarily accepted the public funds. As Justice Kagan said in dissent:
The First Amendment’s core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona’s anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying ... our entire Constitution by enhancing the opportunity for free political discussion to the end that government may be responsive to the will of the people.
From protecting depictions of animal cruelty to hurting public sector unions to promoting anti-abortion speech over pro-choice speech to overruling the efforts of politicians to rid elections of corporate and other types of spending, the Roberts Court, with the Chief out front, has turned the first amendment into a weapon for the Republican party and other conservative interests. And in case after case after case the conservatives, including Scalia and Thomas, did so with nary a word of originalist support. This first amendment fanaticism is wrong as a matter of law, wrong as a matter of public policy, wrong as a matter of politics, and wrong as wrong can be as a matter of originalism.