The Roberts Court at 10

The Strongest Free Speech Court in History? | Chapter 9


Observers on both the right and the left have called the Roberts Court the “strongest First Amendment Supreme Court in our history,” and there is no doubt that John Roberts has been at the forefront of the Roberts Court’s First Amendment jurisprudence. In his nearly ten years on the Court, Chief Justice Roberts has written more majority opinions in free speech cases than any other current member of the Court, including opinions in a host of the Court’s most important First Amendment cases. Significantly, Roberts has not dissented in any major First Amendment case.

Many of Chief Justice Roberts’s most important statements on the meaning of the First Amendment have come in cases decided by wide margins and that concern constitutional protection for offensive speech. Roberts’s opinions have celebrated that “[s]peech is powerful,” and that the First Amendment requires us “to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” Likewise, Roberts’s opinions have firmly rejected the idea that the government’s interest in regulating speech should be balanced against the value of the speech at issue. He has described such interest balancing in First Amendment cases as “startling and dangerous,” making clear that “the First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.” Roberts’s opinions in other free speech cases, while rejecting an absolutist interpretation of the First Amendment, have placed emphasis on the text’s command that “Congress shall make no law . . . abridging the freedom of speech,” arguing that “[t]he Framers’ actual words” must be given their due. In Roberts’s view, “[t]he First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the ‘unfettered interchange of ideas’—not whatever the State may view as fair.” As Chief Justice, Roberts has repeatedly celebrated “[t]he First Amendment’s purpose ‘to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’”

Despite these broad and universal-sounding claims, 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’.”

Even more troubling are a series of rulings written or joined by the Chief Justice in First Amendment cases in which the Court has favored the privileged and powerful. In a line of closely divided cases, the Court’s conservative majority has struck down campaign finance legislation, made it significantly harder for the government to regulate commercial speech by corporations and other businesses, and sharply limited the power of public-sector unions to collect fees for collective-bargaining, dealing a serious blow to organized labor.

This series of rulings resembles the aggressive, divisive, and now overturned rulings of the Lochner era, named after the infamous 1905 case Lochner v. New York, one of a number of cases in which the Supreme Court of the early twentieth century struck down laws designed to prevent the exploitation of workers. During this era, the Court repeatedly expanded the constitutional rights of corporations and other businesses while dismissively treating the government’s interest in economic regulation. In the Roberts Court, the nation is seeing a revival of Lochner in the name of protecting free speech. And, in the years to come, we are sure to see a steady stream of new cases that aim to use the First Amendment as a deregulatory tool to free businesses from economic regulation.

This snapshot unfolds as follows. Part II examines Chief Justice Roberts’s most significant majority opinions in free speech cases, both those in which he voted to strike down speech regulations and those in which he voted to uphold them, illustrating the contradictory impulses in Roberts’s approach to the constitutional guarantee of freedom of speech. Part III then turns to Roberts’s effort to remake First Amendment law to favor corporations and other powerful interests, examining the campaign finance, commercial speech, and union dues cases in which Roberts has written or joined opinions that adopted expansive, far-reaching interpretations of the First Amendment. Part IV examines a number of sequels to these major rulings that could reach the Roberts Court in the next and succeeding Terms. A short conclusion follows.

More from Civil and Human Rights