Dorf on Law: The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism

Dorf on Law: The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism

By Eric Segall

I’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas.… People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.

                                                                                            Chief Justice John Roberts

John Roberts became the Chief  Justice of the United States Supreme Court on September 29, 2005. This term will make the 15th anniversary of the Roberts Court. During that time some important constitutional doctrines stayed more or less the same (abortion and affirmative action) and others changed dramatically (the Spending Power,  the Second Amendment and voting rights). But by a large margin, the Roberts Court generally and the Chief personally have taken the first amendment's free speech clause and turned it into an aggressive tool to impose the Court's conservative values on the rest of us. As discussed below, the numbers are staggering and the consequences for our country immense. And virtually all of it has nothing at all to do with the original meaning of the United States Constitution.

According to a study by Ronald Collins and David Hudson, between 2005-2020, the Roberts Court decided 56 free speech cases. The Chief authored 15 majority opinions. The four liberals on the Court, Justices Ginsburg, Breyer, Kagan, and Sotomayor, cumulatively wrote a total of 15 free speech majority opinions. Retired Justice Anthony Kennedy, the swing vote from 2005-2018, wrote seven. The Chief wrote only one dissent in those 56 cases and joined two others. In 95% of these cases, Roberts was in the majority. He has been from the start, the "Free Speech Justice."

What kind of speech cases are we talking about? Has the Roberts Court been protecting political dissenters, racial justice protesters, and censorship warriors? Not so much. 

First, a number of these cases can only be explained by the flimsiest of constitutional rationales--the slippery slope. The Roberts Court invalidated a state law banning the sale of violent video games to children, a federal law banning depictions of animal cruelty, including so-called "crush videos" where animals are effectively tortured for sexual pleasure, and civil liability for the highly inflammatory speech of the Westboro Baptist Church, which protested near a military funeral through homophobic and other forms of hate speech. Whether these cases are right or wrong as a matter of policy, there is no plausible originalist basis for the decisions and the Court did not justify these cases on originalist grounds. The Founding Fathers were concerned with prior restraints on political speech and that's about all. As Jud Campbell has documented in an excellent Yale Law Journal article, the Court's robust free speech doctrines can only be justified by reference to living or common law constitutionalism. Yet, it should be noted that so-called originalist Justices Antonin Scalia and Clarence Thomas joined all three of these opinions.

Then there are the truly inexplicable 5-4 free speech cases that reflect the Roberts Court's overall conservatism more than a desire to protect freedom of expression. In Janus v. AFSCME, in an opinion written by Justice Alito, the Court reversed a 1977 case and held that states could not require non-union public sector workers to pay union dues going to collective bargaining costs because doing so somehow violated their free speech rights. Of course, these non-union workers could say anything they wanted at anytime about any subject. This case was much more about the Court's anti-union preferences than restrictions on speech. And the idea that paying for bargaining-related activities of unions would be considered speech as an original matter is laughable. This anti-federalism decision overturned laws in almost half the states. This is "applying the law" only in the sense that the five conservative Justices' personal preferences equals "the law."

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