Legal Commentary

Shaping Up to Be a Big Free Speech Clause Term at the Supreme Court

By Eugene Volokh

Between Citizens United (which has to do with corporate speech related to candidates for office), Stevens (which is an important case about the limits of the ?produced using criminal conduct? rationale for punishing speech, the ?lacks serious value? rationale for punishing speech, and the ?compelling interest? rationale for punishing speech), and now Christian Legal Society, it?s looking like an important Free Speech Clause Term at the Supreme Court.

The last several years have been comparatively quiet. True, Wisconsin Right to Life (2007) was a big important campaign-related speech case. Williams (2008) announced the solicitation exception to First Amendment protection. Garcetti v. Ceballos (2006) was a practically important decision about government employee speech, and Rumsfeld v. FAIR the same Term said conceptually important things about expressive association, expressive conduct, and compelled speech. But most of the other cases (such as Ysursa and Summum) in the last several years relatively narrow; even Morse, the Bong Hits student speech case, was legally narrow, though it attracted a lot of attention. I think we?d have to look back to the 2002-03 Term (McConnell, American Library Ass?n, and Virginia v. Black) to find a year as rich in juicy free speech cases.

UPDATE: I completely forgot about this Term?s Milavetz, Gallop & Milavetz, which might end up being an important case on professional-client speech (a subject about which the Court has in the past said little) and possibly on compelled speech as well. Thanks to commenter Tom Hynes for reminding me.

Full post as published by The Volokh Conspiracy on December 08, 2009 (boomark / email).