The Corporatist Free Speech Superiority of the Roberts Court

Adam Liptak has a pretty interesting article up in today’s New York Times on the relative free speech strength of the Supreme Court under the leadership of John Roberts.

The Supreme Court led by Chief Justice John G. Roberts Jr., the conventional wisdom goes, is exceptionally supportive of free speech. Leading scholars and practitioners have called the Roberts court the most pro-First Amendment court in American history.

A recent study challenges that conclusion. It says that a comprehensive look at data from 1953 to 2011 tells a different story, one showing that the court is hearing fewer First Amendment cases and is ruling in favor of free speech at a lower rate than any of the courts led by the three previous chief justices.

It is no joke that such has been the “conventional wisdom” about free speech in the Roberts era. The validity and veracity of that claim have always mostly escaped me though, and not solely, nor even predominantly because (as the eminent Floyd Abrams argues in Adam’s piece) because of the dreaded progressive evil hobby horse, Citizen’s United.

The root numbers derive from an article by Monica Youn at the American Constitution society’s ACSBlog, which in turn were reviewed for NYT by Lee Epstein and Jeffrey Siegal, who previously wrote a comprehensive law review article (excellent I might add) on the topic in the Journal of Law & Policy. While the root numbers and percentages are interesting, and certainly support the proposition that the Roberts Court is really not all that on the First Amendment free speech protection; they really do not tell the full story of how much, and why, this is really the case.

While both Liptak and Youn discuss some of this depth, I want to emphasize the real nature of the intellectual, and ideological, dichotomy of Roberts court jurisprudence. The Roberts Court has indeed engaged in some notable free speech engagement, but it has been almost entirely in the service of what I would call the “corporatist ideology”. The corporatist ideology is not limited to just corporations and their investors that underpin them, but also to the governmental and military/industrial complex that is now one with business power.

I do not know that I have ever seen a better description of the corporate/government linkage than that offered by Montana Supreme Court Judge Nelson in his dissent in the recent Western Traditions case:

The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping.

Oh so true, and the same increasingly applies to the courts as well, especially via the Federalist Society mindset that courses rampant in federal courts, including at SCOTUS in the Roberts conservative bloc.

This manifests itself in the legal and factual nature of the Roberts Court’s free speech jurisprudence. As Liptak points out, a “majority of the Roberts court’s pro-free-speech decisions — 6 of 10 — involved campaign finance laws”, of which Citizens United obviously tops the list. And as Erwin Chemerinsky points out, that is likely not so much a preference for free speech as a conservative antagonism toward campaign finance restriction laws, and that is not really a calling card of free speech at all. It is, instead, the hallmark of a corporatist ideology.

But the real proof of this pudding comes from an analysis of the four significant decisions not involving campaign finance. Youn described them this way:

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.

That is all true, as far as it goes. But take a deeper look. The “violent video games” case, Brown v. Entertainment Merchants, involved free speech, but also very much centered on regulations on content regulations on an extremely large and powerful entertainment industry, so the resulting decision was indeed supportive of free speech, but not so much regulative authority and conduct. The same generally holds true for the “animal cruelty videos” case, Brown v. Entertainment Merchants Assoc. As Youn explained, Sorrell v. IMS Health, Inc. involved enhancement of commercial business speech, but it was at the direct detriment to personal privacy. And, lastly, “funeral protest” decision, Snyder v. Phelps, which rightly blasted tort liability on protected free speech, also very much reaffirmed time, place and manner restrictions on protected speech, on which corporations and governments rely on substantially to both blunt and restrict free speech (a reaffirmation, by the way, that is one of the reasons I consistently say the OWS protesters will never get any First amendment relief from Clark v. CCNV from the Roberts Court).

The net result is that, whether in the six campaign finance cases, or the other four cases, even where the Roberts Court has found in favor of free speech, there is always a pro-corporatist foundation beneath the surface.

But the “corporatist” tendencies on free speech issues with the Roberts Court do not end with the above, there is the governmental component of the corporatist ideology. As Chemerinsky describes in the Arizona Law Review piece linked above, this may be even more disturbing:

The Roberts Court has consistently ruled against free speech claims when brought by government employees, by students, by prisoners, and by those who challenge the government’s national security and military policies. The pattern is uniform and troubling: when the government is functioning as an authoritarian institution, freedom of speech always loses.

This fact really cannot be emphasized enough, it is of critical importance and lies behind much of what we do here at Emptywheel. Chemerinsky takes the reader though the gauntlet of blows to free speech in this arena. Garcetti v. Ceballos, which involved retaliation for ethical disclosure speech and results effectively in whistleblowers who expose wrongdoing by others within their workplaces having little to no First Amendment protection. Borough of Duryea v. Guarnieri, where the Court held government employees may utilize the First Amendment protection of a right to petition the government for redress of grievances only if such speech involves a matter of public concern. And Beard v. Banks, where the Court gave effectively total deference to the government in regulating prisoner access to newspapers, magazines, or photographs.

But Chemerinsky saves, perhaps, his strongest words – and rightfully so – for our old favorite Holder v. Humanitarian Law Project.

Perhaps the most troubling First Amendment decision by the Roberts Court was in 2010 in Holder v. Humanitarian Law Project. Federal law prohibits providing “material support” to a “foreign terrorist organization.” Material support is defined to include such activities as “training,” providing “personnel,” and giving “expert advice or assistance.” Two groups of Americans brought a lawsuit seeking to establish First Amendment protection for their assistance to groups that had been designated by the Department of State as foreign terrorist organizations. One group of Americans sought to help a Kurdish group, which sought to form an independent state, use international law and the United Nations to peacefully resolve disputes. The other group of Americans sought to help a group in Sri Lanka, which similarly aimed to form a separate nation, apply for humanitarian assistance.

The Court, in a 6–3 decision, ruled that this speech could constitutionally be punished.
….
In other words, the Court allowed the government to prohibit speech that in no way advocated terrorism or taught how to engage in terrorism solely because the government felt that the speech assisted terrorist organizations. The restriction on speech was allowed even without any evidence that the speech would have the slightest effect on increasing the likelihood of terrorist activity. The deference that the Court gave to the government was tremendous and the restrictions it placed on speech were great. (citations omitted; emphasis added)

Erwins entire law review article, which was also a keynote speech, is a great read if you want more depth on the different ways the Roberts Court has acted contrary to the founding ideals of free speech.

But, when you add up the blows to individual expression and blatant support for corporate and governmental interests in the Roberts Court Free Speech decisions, it is hard to conclude they are a free speech court at all, much less an admirably expansive one as is so often claimed in the media. No, rather, the Roberts Court is merely an expansive corporatist court.

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18 replies
  1. scribe says:

    It needs also be remembered that the 5-4 split in the funeral protest case prevented an even worse result. Had the dissent won the day, it would have permitted the government to punish speech purely based upon the content of the speech. If it had been offensive, it could have been prohibited.

    Go read that dissent.

    And, then, wonder why Obama and Holder have not undertaken to remake the Supreme Court. Thomas gave them a golden opportunity, when he forgot to mention the hundreds of thousands of dollars his wife received (from wingnut welfare sources, IIRC), on his disclosure forms. He could, and should, be facing false statements charges at the least, and would have been susceptible to a “leave the Court and we won’t prosecute” deal (at a merciful minimum). Instead, Obama and Holder left him alone, making the 5-4 Rethug majority more, not less, permanent.

    Remember that, every time Obama comes calling waving the Supreme Court as a reason to re-elect him.

  2. bmaz says:

    @scribe: I have nearly come to blows with progressives/liberals on Twitter cackling about Thomas’ “ethical violations” for going to his crappy Koch seminars and whatnot and then not recusing on half the cases before the court. It is just drivel. I dislike Thomas completely, but none of that is mandatory recusal basis in the least. And they whine on about this without saying a FUCKING WORD about the direct crimes, as you describe, committed by Thomas. Anybody who is serious about wanting to take Thomas out should not be idiotically focusing on the wrong path to do so. DOJ prosecutes people for less substantive tax crimes every day, just not Thomas.

  3. JohnLopresti says:

    I guess I have not organized much on 1A matters. There is plenty that is germane in the local workstation, however which is interlocked with 4A. But my notes are too scattered at the moment to coalesce into a simple, studied sweep in a comment to a very good post from bmaz above.

    However,…

    TGoldstein had a few slightly eccentric observations to post online in a First Amendment Center colloquy four years and nine months ago. The cited Goldstein article appeared prior to the exit of associate justices Souter and JP Stevens; and mostly examines a range of associate justice Thomas’ opprobria, and his readiness to obliterate stare decisis. A lot of the Goldstein essay is surprisingly out of date already, though his occupation requires he follow 1A matters closely. FYI, he has emigrated from the affiliation with the lawfirm listed in the article credits, now having his own Scotus bar practice once again. And he’s pretty much only a moderate, albeit a thorough and learnèd one.

    Thanx for the current crop of links. But the stuff I see in election law and elsewhere is attritional. This Scotus Ch J zebra is not merely calling pitches in or outside of the strike zone. I guess Fred Thompson likes the ‘american pasttime’, though.

    If it were a light moment, I might want to ponder SG Kagan’s ban the books and pamphlet moments, during argument* of the CU case. For me, it only elicited a smile, and brought me to the medieval text of Cervantes’ cleric zealously burning books while Quijote was at meander.

    – – – – –
    * the slate link is to a 2010 Hasen article; he is a reference expert in electoral law.

  4. Bob Schacht says:

    bmaz,
    Thanks for this interesting analysis. Is Kennedy really being bought off by the MOTU, or does he really believe this BS?

    As for what you write about Holder and Obama, do you think Obama thinks he can outsmart the MOTU, or has he just sold out to them? I’m wondering if he adopted this tactic: To recruit the best experts for each Department, whether they were MOTU or not, and to defer to them until he felt more confident about any particular set of issues, and then, in his second term if any, replace the MOTU moles with people who would carry out the Obama agenda? I am having a hard time believing that Obama is really as craven as you take him to be.

    Bob in AZ

  5. bmaz says:

    I absolutely do not believe Anthony Kennedy is bought off by anybody. Nor do I particularly think any of the other justices are either; that was one of my points actually; as far as I can tell, they simply believe in this, and after decades of indoctrination of conservative ideology generally, and the Federalist Society legally, that is what you get.

    Nor do I think Obama is “bought off” either, I think this is who he is. It is just not what he advertised, nor aggressively led people to believe (and is so doing again in his increasingly campaign stump persona). The fallacy is in thinking he is, or ever was, anything other than what the root facts have always demonstrated – a man desperate for confirmation, willing to come along to get along, molded by the Chicago School, and more concerned by climbing social and political ladders than actually learning the skills and doing the work at any rung. Waiting for the Obama of dreams to emerge magically is just waiting for more eleventy dimensional chess disappointment.

    That said, as much as I have to hold my nose to say so, the Supreme Court ideological balance potential for catastrophic change in the wrong direction should Obama not be reelected is, by itself, enough that he must be reelected.

  6. Bill Hicks says:

    The current Republican “position” is entirely authoritarian, Romney most certainly being among those who disdain democracy. Any Supreme Court at the mercy of a Republican president will be kicked much further to the right. This situation is a necessary and sufficient reason to vote for Obama this year. The great and ongoing problem liberals have is simply not enough fingers to plug all the holes in the dike. For every rational analysis like this one there are days and months of David Brooks, et al.

  7. orionATL says:

    john roberts is a creature of and now a master of the supreme court.

    that is why the federalist society and karl rove put him there – to control and disrupt.

    in this vein, the key fact of interest to me in this report is that the roberts court has heard fewer free-speech cases than others.

    if you refuse to hear a case or class of cases, then their legal ramifications have reduced or no effect on society.

    i believe it may be the case that the roberts court exerts as much influence for its right-wing ideology by controlling what is heard as by its cookie cutter 5-4 decisions.

  8. bmaz says:

    @orionATL: This is a pretty good point. In fairness, I guess, SCOTUS hears less of all kinds of cases these days; their overall docket size has shrunk over the years.

  9. orionATL says:

    bmaz wrote:

    “That said, as much as I have to hold my nose to say so, the Supreme Court ideological balance potential for catastrophic change in the wrong direction should Obama not be reelected is, by itself, enough that he must be reelected…”

    i see this argument repeated over and over.

    it makes no sense to me at all.

    a consistent 5-4 is as binding as a 6-4.

    one certainly could make the case that dozens of 5-4 decisions favoring right-wing views and involving the same five conservative catholic judges,

    diminishes the standing of the rulings and precedents by virtue of not having broad social support,

    but

    nobody bothers to make this argument these days.

    just as no one bothers to attack the five mitered justices’ mix of right-wing religion and right-wing politics.

    who knows what type of justice a prez romney would appoint. reagan appointed sandra day o’connor who proved to be a sensible political jurist. romney has been gov of massachusetts, not georgia or south carolina.

  10. orionATL says:

    with regard to “attacking” the 5 mitred justices’ justices’ legitimacy (my preference),

    everyone recalls the roosevelt effort to break the power of a conservative supreme court over his legislative and executive decisions.

    that effort is often referred to as roosevelt’s “court-packing” effort, a perverse propaganda term if there ever was one – the court was already packed, that was the problem roosevelt was tackling,but

    what is rarely discussed is that following the “failure” of roosevelt’s effort to add members to the supreme court,

    somehow, “mysteriously”, the supreme court suddenly stopped erecting right-wing blockades to roosevelt’s efforts to govern amid economic and social crisis.

    was it barack obama who likened himself to franklin roosevelt?

  11. orionATL says:

    bmaz wrote:

    “… I think this is who he is. It is just not what he advertised, nor aggressively led people to believe (and is so doing again in his increasingly campaign stump persona). The fallacy is in thinking he is, or ever was, anything other than what the root facts have always demonstrated – a man desperate for confirmation, willing to come along to get along, molded by the Chicago School, and more concerned by climbing social and political ladders than actually learning the skills and doing the work at any rung. Waiting for the Obama of dreams to emerge magically is just waiting for more eleventy dimensional chess disappointment…’

    this strikes me as a remarkably accute assessment of our president’s motivating emotions.

    i would add:

    a man, so far as i can tell, devoted to his own advancement, but nothingmore.

  12. bmaz says:

    @orionATL: Romney has indicated he would appoint only right wing Federalist Society types, and I believe him because there would be insane fallout for him not to do that from his base and party. It is just a given.

    Further, you have to assume that the next president may get to replace TWO justices – Ginsburg and Kennedy – and if that came to be and was done by a GOP president, it would be a catastrophic shift that would hurt immeasurably for 20-30 years. Yes, it really is that sensitive.

  13. bmaz says:

    @orionATL: The problem with that is that FDR’s court packing threat would never held up and there is no way the current SCOTUS would not shoot it down.

  14. William Ockham says:

    I just want to mention how destructive I think the Sorrell v IMS decision is. I’m married to a physician and it always freaks me out how much big Pharma knows about prescribing patterns and what they are willing to do with that knowledge. Reps have come into my wife’s office and insinuated that she should be concerned about her junior partner because she wasn’t prescribing as much of their drug as my wife was. That’s just one of the less nefarious uses for this data.

  15. bmaz says:

    @William Ockham: Yes, absolutely, I have heard that from a couple of friends who are doctors. And it did not need to be decided that way either; that is just what they do at the Roberts Court.

  16. JohnLopresti says:

    @re: my @4, The barrister, TG, I mentioned was counsel to IMH at Scotus. A statement from one of the amici opposing IMH may be found there. Reviewing my case notes, it seems bmaz has selected that case aptly as illustrative of how the current Scotus decisions’ balance tends to move the fulcra to the conservative spectrum on the 1A tachometer. I am still reading the law j article and companion literature.

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