Chief Justice Roberts and the First Amendment
When John G. Roberts was nominated in 2005 to become the 17th chief justice of the United States, he faced heated opposition.
Howard Dean, then-chairman of the Democratic National Committee, called him “the wrong man for the job.” Ralph Neas, president of People for the American Way, termed him “a dangerous bet.” One hundred sixty law professors sent a letter to the Senate opposing his nomination to the Supreme Court. Georgetown law professor Peter Edelman said: “Roberts has systematically shown himself, issue by issue, to be on the absolute far right of the spectrum of judicial interpretation, of views about the Constitution of the United States.”
Perhaps many of his opponents still feel the same way about Roberts, viewing him as a staunch conservative. Conservatives are often portrayed as hostile or indifferent to First Amendment freedoms. But in the arena of free speech Roberts has not been a disaster — far from it. Although he did join in Justice Anthony Kennedy’s majority opinion in Garcetti v. Ceballos (2006) — a troubling decision that gravely limited the free speech of public employees — in other free-speech decisions he has shown an appreciation for fundamental First Amendment values.
Consider some passages from Roberts’ majority opinions.
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Roberts wrote this passage toward the end of his opinion in Snyder v. Phelps (2011), a case involving the reprehensible speech of the Westboro Baptist Church — a group that pickets near the funerals of slain soldiers. The group is among the most unpopular in the annals of Supreme Court First Amendment jurisprudence. But Roberts reaffirmed the principle that the First Amendment protects much offensive, disagreeable, obnoxious and repugnant speech — particularly if that speech addresses public issues.
“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”
Roberts had this to say in his majority opinion in United States v. Stevens (2010), a case examining a federal law that criminalized images of animal cruelty. The government argued that the Court should create a new unprotected category of speech akin to child pornography, incitement to imminent lawless action and obscenity. Roberts resisted the urge simply to create a new unprotected category, instead recognizing that the default position of a society with a First Amendment is to protect speech.
“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”
So wrote Roberts in Federal Election Commission v. Wisconsin Right to Life (2007). Many assert that the government should be able to limit corporate campaign spending and ads because such spending distorts the political process and could lead to corruption or the appearance of corruption. But the Supreme Court has recognized that when a group spends money, it is in effect saying, “We support Candidate X” and his or her stands on core political issues. Political speech is supposed to be the core type of speech that the First Amendment protects. Roberts ruled that a ban on so-called electioneering communications in the Bipartisan Campaign Reform Act was unconstitutional as applied to a nonprofit corporation that wanted to run issue ads.
He later voted with the majority in Citizens United v. Federal Election Commission (2010), striking down a provision banning corporate spending in elections. Many have decried the Roberts Court’s dismantling of campaign-finance efforts, but others see the rulings as protecting free speech.
John G. Roberts Jr. has proven to be more of a First Amendment defender — at least in certain contexts — than many imagined.
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Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.
Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, radio, television and online.
John Seigenthaler founded the First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.
Dr. Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum. He writes and speaks extensively on religious liberty and religion in American public life.
David L. Hudson Jr. is a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.
Tiffany Villager is director/First Amendment studies at the First Amendment Center, which she joined in 1993. She also served as the center’s research manager and research coordinator, and developed the center’s library.
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[...] Hudson of the First Amendment Center argues that Chief Justice Roberts “has proven to be more of a First Amendment defender — at [...]
[...] L. Hudson at the First Amendment Center: Conservatives are often portrayed as hostile or indifferent to First Amendment freedoms. But in [...]
[...] Hudson of the First Amendment Center argues that Chief Justice Roberts “has proven to be more of a First Amendment defender — at [...]
[...] You can read the analysis of Roberts’ decisions regarding the First Amendment here. [...]
A good article, but it doesn’t go far enough in analyzing Roberts’ holding in Snyder v. Phelps. I have expanded that analysis here (NSFW):
Analysis: Why Westboro’s Victory Should Be Ours As Well
By Mark Kernes, Sr. Ed., AVN Media Network
WASHINGTON, D.C.—There’s pretty much unanimous sentiment in the adult industry that free speech is a Good Thing—and that even goes for ignorant yahoos who picket funerals with signs reading, “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”
The above-mentioned yahoos are Rev. Fred Phelps, founder of the Westboro Baptist Church of Topeka, Kansas (big surprise there!), two of his daughters and four of his grandchildren, all of whose craving for media attention rivals that of any adult movie performer.
These magnificent seven flew into Maryland in 2006 to attend the funeral of Marine Lance Corporal Matthew Snyder, who’d been killed during America’s undeclared war in Iraq and was being buried in his hometown of Westminster. The Westies set up a mini-picket line a short distance outside the memorial service at a local Catholic church, as well as the nearby Maryland State House and the United States Naval Academy, carrying the above-described signs, singing hymns and reciting Bible verses for about 30 minutes at each location.
Matthew’s dad, Albert Snyder, was majorly offended by the picketers’ actions, and filed suit in the United States District Court charging defamation of his dead son, intentional infliction of emotional distress, unwanted publicity given to the life of a private citizen, intrusion upon the family’s seclusion, and civil conspiracy between the defendants to do all those things. The Westboro defendants filed motions for summary judgment, and the court dismissed the defamation and publicity given to private life claims, but allowed the other three torts to go to trial.
Eventually, a jury found for the plaintiff on the three remaining charges, and awarded him $2.9 million in compensatory damages and another $8 million in punitive damages (which the court later reduced to $2.1 million, leaving Westboro on the hook for a total of $5 million.)
Needless to say, Westboro appealed, and the Fourth Circuit Court of Appeals agreed that the church’s ravings were protected speech. Snyder appealed that decision, and his petition was ruled on by the U.S. Supreme Court on Wednesday. Chief Justice John Roberts wrote the opinion for the 8-1 majority, with only Justice Samuel Alito dissenting.
“Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case,” Roberts writes near the beginning of the opinion. “‘[S]peech on “matters of public concern” … is “at the heart of the First Amendment’s protection”.’ The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ That is because ‘speech concerning public affairs is more than self-expression; it is the essence of self-government.’” [Citations removed here and below.]
As adult industry/sexual speech supporters are likely to notice, Roberts is careful to draw the distinction between speech that is likely to affect public policy or societal views at large, and speech that involves “purely private matters,” because the latter “does not implicate the same constitutional concerns as limiting speech on matters of public interest.” Never mind that the First Amendment itself doesn’t make that distinction.
Indeed, Roberts undertakes some significant verbal gymnastics to avoid legitimizing freedom for sexual speech. So while he quotes from Connick v. Myers (1983) to better define the “not well-defined … boundaries of the public concern test” by noting that, “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community’,” he attempts to take the definition back by using Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) to distinguish speech of “purely private significance” as, for example, “information about a particular individual’s credit report.” [Emphasis added.] Based on that distinction, which type of speech does an adult video more closely resemble?
Roberts is surely aware of this, since he goes out of his way to take a swipe at such material—even though the reference fails to address the real issues involved in, for example, public displays of sexually-explicit content:
“To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos ‘did nothing to inform the public about any aspect of the [employing agency's] functioning or operation’.”
But, according to Dun & Bradstreet by way of Connick, “Deciding whether speech is of public or private concern requires us to examine the ‘content, form, and context’ of that speech, ‘as revealed by the whole record’.” [Internal quotes removed]
Having tried to make that distinction, however, Roberts fails to square the San Diego v. Roe objection with the court’s support for Westboro, and by extension, any public display of adult material.
“The ‘content’ of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern’,” Roberts writes. “The placards read ‘God Hates the USA/Thank God for 9/11,’ ‘America is Doomed,’ ‘Don’t Pray for the USA,’ ‘Thank God for IEDs,’ ‘Fag Troops,’ ‘Semper Fi Fags,’ ‘God Hates Fags,’ ‘Maryland Taliban,’ ‘Fags Doom Nations,’ ‘Not Blessed Just Cursed,’ ‘Thank God for Dead Soldiers,’ ‘Pope in Hell,’ ‘Priests Rape Boys,’ ‘You’re Going to Hell,’ and ‘God Hates You.’ While these 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. The signs certainly convey Westboro’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs—such as ‘You’re Going to Hell’ and ‘God Hates You’—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.”
A “broader public issue” like, say, the question of whether people carrying incendiary protest signs are more or less likely to cause public unrest (or at least discussion) than images of two people fucking on a public sidewalk? Would it make a difference if the two fucking people were dressed as clergy?
Roberts and the majority squarely reject Snyder’s argument that “the church members in fact mounted a personal attack on Snyder and his family, and then attempted to ‘immunize their conduct by claiming that they were actually protesting the United States’ tolerance of homosexuality or the supposed evils of the Catholic Church’.”
“We are not concerned in this case that Westboro’s speech on public matters was in any way contrived to insulate speech on a private matter from liability,” Roberts writes. “Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no serious claim that Westboro’s picketing did not represent its ‘honestly believed’ views on public issues. There was no pre-existing relationship or conflict between Westboro and Snyder that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter.”
Okay; so it’s important to reject the idea that the fact that Westboro’s politically-oriented signs should be banned because they offend one single person, Albert Snyder. How much more important, then, should it be not to ban public social speech—say, of a sexual nature—because it offends a group of people, like a church congregation—or the entire Congress?
But Roberts isn’t stupid; he’s well aware of where his logic logically takes us—so it’s time to trot out Renton v. Playtime Theatres without mentioning it.
“The record makes clear that the applicable legal term—’emotional distress’—fails to capture fully the anguish Westboro’s choice [of location] added to Mr. Snyder’s already incalculable grief,” Roberts admits. “But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a ‘special position in terms of First Amendment protection.’ ‘[W]e have repeatedly referred to public streets as the archetype of a traditional public forum,’ noting that ‘”[t]ime out of mind” public streets and sidewalks have been used for public assembly and debate.’ That said, ‘[e]ven protected speech is not equally permissible in all places and at all times.’ Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach—it is ‘subject to reasonable time, place, or manner restrictions’ that are consistent with the standards announced in this Court’s precedents.”
“Simply put, the church members had the right to be where they were,” Roberts states, adding later, “The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said ‘God Bless America’ and ‘God Loves You,’ would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.”
“Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment,” the majority opinion continues. “Such speech cannot be restricted simply because it is upsetting or arouses contempt. ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’ Indeed, ‘the point of all speech protection … is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful’.”
“Upsetting”? That’s porn to a lot of people. “Arouses contempt”? Ditto. So how could a display of people fucking in conjunction with an argument that, say, the First Amendment contains no language allowing such photographed or videotaped speech to be prohibited not be protected “simply because society finds the idea itself offensive or disagreeable”?
On a related note, “The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was ‘outrageous.’ ‘Outrageousness,’ however, is a highly malleable standard with ‘an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression’.”
Fuckin’ A, as we say—and where was that last quote taken from? None other than Hustler Magazine, Inc. v. Falwell, the seminal 1988 case that told the Rev. Jerry that sticking his face on the ass end of an ass and satirizing his “sexual relationship” with his mother weren’t legally actionable no matter how much the depictions might offend the “jurors’ tastes” or invoke “their dislike of a particular expression.” Yet… how else to describe an obscenity prosecution? There are no set criteria in the law describing just what is prohibited; it all always comes down to the jurors’ tastes and their like or dislike of the particular expression!
What takes real moxie, though, is Roberts actually quoting one of the high court’s seminal sexual freedom cases to support the majority’s decision, while still attempting to distance the court from the decision’s implications for obscenity law!
“Snyder argues that even assuming Westboro’s speech is entitled to First Amendment protection generally, the church is not immunized from liability for intrusion upon seclusion because Snyder was a member of a captive audience at his son’s funeral,” Roberts writes. “We do not agree. In most circumstances, ‘the Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, … the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes’.”
Where’s that last quote from? Erznoznik v. City of Jacksonville, a 1975 case where the Supremes struck down a Jacksonville ordinance that made it a “public nuisance” to show a film containing nudity at a drive-in theater where the screen is visible from a public street or other public place. The majority viewed the ordinance as a content-based restriction, and found that that outweighed the various justifications put forth by the city: Protection of children and prevention of distraction to passing motorists.
As a result,” Roberts continued, “‘[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is … dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner’.”
But if a jury’s tastes are not a proper criterion for banning speech, and speech cannot be restricted simply to “protect” others from hearing (or seeing) it in a public place, absent convincing evidence that “substantial privacy interests are being invaded in an essentially intolerable manner,” where is the justification for criminalizing some sexual speech performed by consenting adults and watched by consenting adults in the privacy of their own homes, no matter what sexual acts are being portrayed? Quite obviously, there is none.
Even in the concluding paragraphs of the opinion, the disconnect between hate speech and obscene speech are blurred.
“Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible,” Roberts tellingly admits. “But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials… Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.”
Considering the current level of sophistication of the American public, which has access to tens (if not hundreds) of thousands of hardcore scenes at their video stores and on the internet, which can see full nudity and simulated sex 24 hours per day on cable/satellite TV, and which seems to have a love affair with the bed-hopping of Hollywood stars both in real life (TMZ) and in fiction (Desperate Housewives, or any daytime soap opera), not to mention the sleazy goings-on in shows like Jersey Shore or the various Real Housewives of… incarnations, it’s far from clear how the Supreme Court can continue to justify prosecuting adult producers like John Stagliano, Jeff Steward, Max Hardcore, Rob Black or even Ira Isaacs for “obscenity.”
But Roberts and the majority are in no mood to consider the clear implications of their ruling here.
“Our holding today is narrow,” Roberts is careful to state. “We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us.”
It would be nice if the nine people who hold the supreme power in the United States to interpret its Constitution would stop splitting hairs, read the text of the First Amendment, do a little investigation into its origins and the way it was interpreted for at least 30 years after the founding of the country, and do their constitutional duty where sexual speech is concerned.
According to the Washington Post, when Margie Phelps, daughter of Westboro founder Fred Phelps and a lawyer in her own right—she argued her own case before the Supreme Court—was asked how the decision would affect her church’s tactics, she responded, “We’re going to picket more.”
Hopefully, something similar will be the response of every adult producer accused of obscenity.
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