At the closing plenary panel of the ACS 10th Anniversary National Convention, The New York Times Supreme Court correspondent Adam Liptak said an effort would be made to “try and make sense of the Roberts Court’s First Amendment jurisprudence.” To that end, the panel at least offered an entertaining attempt at making sense of the Court’s track record on First Amendment issues.
For instance, Liptak said the panel would try to figure out how the Roberts Court could uphold the free speech rights of “lunatic funeral protestors, aficionados of dog-fighting, corporations, but not people who try through benign means to persuade terrorists to give up their arms.”
New York Law School professor Nadine Strossen, when asked to sum up the coherence of the Roberts Court’s First Amendment jurisprudence said that when you step back and look at the overall pattern of decisions through the six terms of the Roberts Court, it is really “much more negative for freedom of speech. In every single one of the terms that has concluded the free speech losses outnumbered the free speech gains, and the total record, the free speech losses outnumbered the wins by more than a 2 – 1 margin.”
She noted that a full two-thirds of the free speech victories were in the area of campaign finance. The big losers for free speech claims, Strossen said were public workers, public employment unions, or students at public schools or universities.
Columbia University President Lee C. Bollinger said that even when the Roberts Court upholds free speech rights it does so in the narrowest way possible, and fails to explain to the country or the world why free speech is such a great principle. Bollinger then pointed to Justice Samuel Alito as a justice who frequently articulates strongly some of the harms of unfettered free speech, as he did in the funeral-picketing case and the case involving a regulation of videos depicting cruelty to animals. And Alito’s strong opinions call “for an answer by the majority and it’s just not there.”
Floyd Abrams, partner at Cahill Gordon & Reindell LLP, said he found it “disturbing,” that passionate supporters of the First Amendment cannot acknowledge the “seriousness, the centrality of the First Amendment interests on the side that those conservative jurists thought were so important in the campaign finance cases. Abrams argued before the U.S. Supreme Court in Citizens United v. FEC on behalf of the interests of corporations in striking down campaign finance regulations.
The other panelists included Judge Marsha S. Berzon, U.S. Court of Appeals for the Ninth Circuit, Paul D. Clement, partner, Bancroft PLLC, and former U.S. Solicitor General, and Monica Youn, senior counsel, Democracy Program, Brennan Center for Justice.
Video of the entire discussion is available here or by clicking on image below.