Federal Courts and Nominations

Is The Roberts Court The Strongest Free Speech Court in History?

Washington, DC – With a ruling in an important First Amendment case, Elonis v. United States, still due from the Supreme Court in coming weeks and expected to be written by Chief Justice Roberts, Constitutional Accountability Center is releasing the latest Snapshot in its “Roberts at 10” series, Roberts at 10: The Strongest Free Speech Court in History?


Today’s Snapshot examines the contradictory impulses in Chief Justice John Roberts’s approach to the constitutional guarantee of freedom of speech and his effort to remake First Amendment law to favor corporations and other powerful interests, as well as a number of sequels to major cases that could reach the Roberts Court in the next and succeeding Terms. 


Read the new “Roberts at 10” Snapshot and an excerpt here: http://theusconstitution.org/sites/default/files/briefs/Roberts-at-10-First-Amendment-Snapshot.pdf 


A complete review of the Chief Justice’s First Amendment jurisprudence demonstrates that Roberts has been more favorable to some free speech claims than to others. At the same time that Chief Justice Roberts has helped ratchet up First Amendment protections in some cases, he has also written a number of major, divided rulings upholding content-based regulation of speech, the kind of government regulation usually disfavored under the First Amendment. For example, Roberts has authored key rulings that rejected First Amendment claims by public school students, by human rights activists seeking to train terrorist groups to use peaceful methodologies, and by candidates for judicial office seeking to personally solicit campaign contributions, and joined other decisions limiting the First Amendment rights of government employees and prisoners. In these cases, Roberts has deferred to the government in significant ways, prioritizing the government’s interest in its educational or employment mission, in national security, and in prison administration, over the individual’s right to speak protected by the First Amendment. These cases seem plainly informed by the kind of cost-benefit analysis that Chief Justice Roberts has ruled out of bounds in other, more speech-protective rulings. These cases featured dissents accusing the Chief Justice of doing  serious violence to First Amendment protections and cutting back on landmark free speech rulings. In the Roberts Court, some have charged, “free speech often means ‘speech I agree with’.”




Additional Resources:


*  “Roberts at 10” experts available for interviews: CAC Civil Rights Director David Gans and Appellate Counsel Brianne Gorod.


*   “The Roberts Court Thinks Corporations Have More Rights Than You Do,” David Gans, The New Republic, June 30, 2014: http://www.newrepublic.com/article/118493/john-roberts-first-amendment-revolution-corporations 


*  Roberts at 10: A Look at the First Decade of John Roberts’s Tenure as Chief Justice (opening Snapshot): http://theusconstitution.org/sites/default/files/briefs/Roberts-at-10-A-Look-at-the-First-Decade.pdf 


*  Roberts at 10: Federal Power: The Evolving Story of John Roberts and Congress’s Commerce Clause and Spending Clause Powers: http://theusconstitution.org/sites/default/files/briefs/Roberts-at-10-Evolving-Story-of-John-Roberts-federal-power.pdf 


*  Roberts at 10: Campaign Finance and Voting Rights: Easier to Donate, Harder to Vote: http://theusconstitution.org/sites/default/files/briefs/Roberts-at-10-Easier-to-Donate-Harder-to-Vote.pdf 


*  Roberts at 10: Roberts’s Quiet, But Critical, Votes To Limit Women’s Rights: http://theusconstitution.org/sites/default/files/briefs/Roberts-at-10-Roberts-Quiet-But-Critical-Votes-To-Limit-Womens-Rights.pdf 


*  Roberts at 10: Roberts’s Consistent Votes to Close the Courthouse Doors: http://theusconstitution.org/sites/default/files/briefs/Roberts-at-10-Access-to-the-Courts.pdf 


*  Roberts at 10: Turning Back the Clock on Protections for Racial Equality: http://theusconstitution.org/sites/default/files/briefs/Roberts_at_10-Race_snapshot.pdf 


*  Roberts at 10: Roberts’s Environmental Law Record: It’s Not Good, But Don’t Count Him Out: http://theusconstitution.org/sites/default/files/briefs/Roberts-at-10-Environment.pdf 


*  Roberts at 10: John Roberts and LGBT Rights  – The Jury is Still Out: http://theusconstitution.org/sites/default/files/briefs/Roberts_at_10-LGBT.pdf 


*  Roberts at 10: Roberts and the Fourth Amendment: A Mostly Pro-Government Vote with Some Important Exceptions: http://theusconstitution.org/sites/default/files/briefs/Roberts-at-10-Fourth-Amendment_0.pdf 




Constitutional Accountability Center (www.theusconstitution.org) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.