Legal Commentary

Michael Dorf summarizes his interesting recent talk on the development of cross-ideological consensus for broad protection of free speech. Pointing to last term, he argues that while three cases (Holder, Citizens United, and CLS) divided along predictable ideological lines, there was broad consensus in favor of the free-speech claimant in two other cases (Stevens and Doe v. Reed).

Of course, an ideological cynic (and in June I was on a Supreme Court Review panel moderated by just such an ideological cynic) would say that there is no commitment to free speech, only to raw ideological outcomes, with free speech as a means to that end that the conservatives accept only in furtherance of favorable political goals. So the conservatives accepted the First Amendment claim in Stevens because the statute was broad enough to prohibit hunting videos--and the conservatives like hunting. But a narrower statute that would not reach hunting videos (which Congress is considering) would survive because the Court's "conservatives" would join Justice Alito (who dissented in Stevens), because they no longer have a political dog in the fight (sorry for the unfortunate pun). And they accepted the First Amendment claim in Doe v. Reed only because it was a narrow decision on a facial challenge; the proof will be when the conservatives accept the as-applied challenge by SSM opponents presenting purely anecdotal evidence of harassment by gay-rights supporters in another state in another ballot dispute. I don't buy this; but someone who wanted to latch on to the hard-core, overly simplistic "it's all politics" view could explain away most of what happened last term.

I agree that free speech should not have an ideological valence. There is commitment to speech principles that carry the day regardless of whose ideological ox benefits. But I am not sure how many people are left (especially on the Court) who are truly committed to free speech as a independent value. Dorf points to Texas v. Johnson as a high-water mark of an ideological mix on a sharply (5-4) divided Court. But really the only surprises there were Scalia and Stevens, who switched places from what was expected (see this post by Sonja West, a former Stevens clerk, on Stevens' Johnson dissent). The rest of the Court fell in more or less as one would expect by examining politics. And Kennedy is not surprising because he is, in my view, the most consistent free-speech supporter on the Court (along with Justice Thomas). Any way, only two members of the Johnson Court remain, so I am not sure how valid that case remains as an example of ideological consensus on speech or of genuine ideological mix-and-match in the coalition. A more recent example might be United States v. Playboy Enter. Group, where the Court struck down a requirement that cable channels showing sexually oriented material must block or scramble; that produced a majority of Kennedy, Stevens, Souter, Thomas, and Ginsburg and a dissent of Breyer, Rehnquist, O'Connor, and Scalia. But note again, only two justices departed from what we might "expect."

Owen Fiss twenty years ago described the "ideological drift" of the First Amendment. There are two sides to this. One, as Dorf notes, is that politically conservative groups "discovered" the benefits of the First Amendment for pushing their political interests--religious groups seeking access to the public square, corporations seeking to advertise, and people challenging "political-correctness" limits on expression. Not a problem there, for the most part, because anyone committed to general free-expression principles mostly would continue to protect speech in those cases. But the flip side was the political left abandoning pure free speech principles in favor of (or at least with some respect for) other constitutional values, especially equality and the rights of historically disadvantaged groups. Nothing illegitimate about that choice (although I have a different constitutional view). But it produces the divide on campaign finance and it produces the divide in abortion-protest cases such as Colorado v. Hill. On the other hand, the ideological conservatives on the Court have not shown any greater inclination than their predecessors to protect the rights of anti-war protesters to march without permits anywhere they want in New York during political conventions or to protect the rights of porno theatres or strip clubs to open where they want to in business area. So I am not sure where the divide takes us.

So what does this mean to the coming term's major First Amendment cases-- EMA (challenging regulations on violent video games as to minors) and Snyder (involving a civil judgment against the Westboro Baptist Church for their obnoxious protests)? Snyder strikes me as an easy case and I am guessing at a 9-0 affirmance that civil liability cannot attach; my ongoing hesitation is why the Court would take a case just to affirm 9-0. EMA is a tougher call. It depends on whether folks view violent speech as akin to sexually explicit speech, in which case the "conservatives" may reject the free-speech argument.