By David Kairys. Kairys, a law professor at Temple University, is a leading civil rights lawyer and author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer. This is drawn in part from his article forthcoming in the Illinois Law Review with full cites to the cases discussed here, The Contradictory Messages of Rehnquist-Roberts Era Speech Law: Liberty and Justice for Some.
The Supreme Court is most known these days for two innovative free speech principles and an unprecedented court order: money is speech and corporations are people, and George W. Bush is the 43rd president of the United States.
These decisions have drawn the harsh criticism they deserve. The campaign finance cases transformed our electoral and constitutional systems by ruling that a handful of the wealthiest Americans must be allowed to dominate the electoral process.
But all three of these cases expanded speech rights and have contributed to a widespread impression that over the last few decades, the Supreme Court, while more or less dominated by self-described conservative justices, has been generally, if also sometimes excessively, pro-free speech. This impression has been fed by occasional decisions protecting some outlier protests, like picketing near soldiers’ funerals.
Others see the court as anti-free speech, pointing to decisions that restrict the speech rights of, for example, students and government employees, and to the lack of judicial protection of demonstrators as public officials increasingly these days keep them away from public and media visibility and the objects of their protests, out of sight and out of mind.
Looking at the range of speech decisions over the past few decades, inconsistent, selective, and contradictory seem better descriptors than pro- or anti- free speech. But there are discernible and significant themes and patterns in the tangle of speech decisions, principles, and doctrines, and they have been ignored far too long.