The Roberts Court's Selective Protection of Speech

Today’s New York Times spotlights a recent analysis of the Roberts Court’s record in free speech cases. In The Roberts Court’s Free Speech Double Standard, Monica Youn, Brennan Center Constitutional Fellow at NYU School of Law, presents the following assessment:

In its first five years, from 2006 until 2011, the Roberts Court granted certiorari in 29* cases in which a free speech violation was claimed (including the speech, press, assembly, and association guarantees). In these cases, the Court held that that a free speech violation existed in 10 of the cases, and that no free speech violation had been demonstrated in 19 of these cases. Thus, simply looking at the numbers, the Roberts Court has supported a free speech claim in 34.48 percent of argued cases. By way of comparison, as Lee Epstein and Jeffrey A. Segal have shown, from 1953 to 2004, the Supreme Court supported claims of deprivation of First Amendment liberties in 53.95 percent of argued cases. Thus, at the most basic quantitative level, the Roberts Court seems to be not especially protective of free speech rights.

Disaggregated, these numbers become more dramatic. Out of the 10 cases where the Roberts Court has supported a free speech claim, six of those are cases in which the Court struck down campaign finance reform laws (counting WRTL twice, per Epstein and Segal’s protocol*). These numbers bear out Chemerinsky’s argument that “what really animates [the Roberts Court’s ] decisions is a hostility to campaign finance laws much more than a commitment to expanding speech.”

Out of the four non-campaign finance cases in which the Roberts Court has supported a free speech claim, three -- the animal cruelty videos case, the funeral picketing case, and the violent video games case -- were what I will call free speech “slam-dunks” – that is, cases that were decided by an 8-1 or 7-2 majority, and in which (contrary to the usual Supreme Court’s certiorari practices) there was no split among circuit courts, and the Court affirmed the lower court decision. These free speech slam-dunks, with their colorful facts, were among the Roberts Court’s cases that have attracted the most press attention, but they are hardly indicative of a conservative majority with an expansive view of First Amendment freedoms. The remaining case in which the Roberts Court was willing to uphold a non-campaign finance related free speech claim was Sorrell v. IMS Health Inc., a relatively low-profile commercial speech case in which a 6-3 majority of the Court struck down a state “prescription confidentiality” law, which barred sale or disclosure of doctors’ prescription practices to pharmaceutical marketers. An interesting case, and one which warrants more attention than it has received so far, but not really a banner-worthy free speech decision. At the same time, the conservative majority has shown itself willing to disregard free speech claims by, inter alia, government employee whistleblowers, humanitarian aid organizations, and, most pertinently for today’s purposes, unions. Thus, it seems that the most that can be said of the conservative majority’s free speech record is that “The Roberts court strongly protects speech that it likes, while allowing regulation of speech it disfavors,” as Adam Winkler has put it.