Speech and expression

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.

In an 8-1 opinion issued this morning, the high court led by Chief Justice John Roberts found that the content of Westboro's speech "plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern.'"

For decades Fred Phelps and his tiny Kansas-based church, made up largely of his relatives, have traveled the country initially targeting the funerals of persons who had died of AIDS with signs reading "God Hates Fags." Eventually after antiviral drugs helped, in this country, to lessen the number of AIDS-related deaths, Phelps and his family turned to protesting funerals of soldiers, and with two American wars, the opportunities to amplify their vitriol again increased. According to its website "godhatesfags.com," Phelps and his family picket funerals of soldiers as part of a campaign attacking America for allegedly being tolerant of gays. Beyond posting invective on its web site, the small group travels the country to hoist signs at soldiers' funerals reading "God Hates the USA," and "Semper fi fags." When Phelps and his family brought their act to a Maryland funeral of Marine Lance Corporal Matthew Snyder, his father, Albert lodged a lawsuit against the group and won a jury verdict of $2.9 million in compensatory damages and $8 million in punitive damages. The jury verdict was overturned by an appeals court, citing First Amendment protection for Phelps.

Writing for the majority in Snyder v. Phelps, Roberts said the content of Westboro's messages "may fall short of refined social or political commentary, the issues they highlight - the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy - are matters of public import," and ultimately protected by the First Amendment. "Such speech," Roberts wrote, "cannot be restricted simply because it is upsetting or arouses contempt."

Justice Samuel Alito was the only member to dissent. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he wrote.

Alito continued that Phelps' band has a freedom to "write and distribute books, articles, and other texts," and disseminate its commentary in other public ways, such as posting its commentary on its web site.

"It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate," Alito said.

Alito also questioned the majority's conclusion that the Phelps outfit was engaging in speech of public concern. He wrote that evidence showed that the group went "far beyond matters of public concern," and "specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, and this attack was not speech on a matter of public concern."

Tom Goldstein, founder of SCOTUSblog provides some initial reaction to the opinion, noting:

The Court left undecided two important issues that it concluded were not squarely presented. First, recognized that the government may regulate the "time, place, and manner" of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held. The Court did not decide the constitutionality of that statute or other similar federal and state laws. The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals' decision, did not call such statutes into question.

Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website. But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing. The Court was therefore able to limit its decision strictly to the context of funeral protests.