Chief Justice Roberts and the First Amendment

Friday, April 22, 2011

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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