Roberts proves First Amendment prowess in latest term

Friday, July 2, 2010

Chief Justice John Roberts flexed his muscles and displayed his analytical powers in the First Amendment arena during the Supreme Court’s latest term. The 2009-10 term featured significant First Amendment developments concerning speech that’s not protected, laws that are overbroad in infringing on speech, and the treatment of speech in the war on terror, to name a few.

In many of these decisions, Roberts exercised his prerogative as chief justice to assign the writing of the majority opinion to himself. In the most powerful First Amendment opinion of the term, the Court invalidated a broad federal law criminalizing the commercial distribution and sale of images of animal cruelty. Roberts spoke for eight justices — only Justice Samuel Alito dissented — in his opinion in United States v. Stevens that rejected the attempts by the government to put animal-cruelty videos in the same unprotected category as obscenity and child pornography.

Solicitor General Elena Kagan, and the Court’s latest nominee, argued for the government that speech could be categorically removed from First Amendment protection if its value was seriously outweighed by its societal costs. Roberts rejected that test in forceful language that may become part of First Amendment lore:

“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,” he wrote. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”

Later in his opinion he faithfully applied the overbreadth doctrine, pointing out that Congress’ statute simply was too broad and could apply to many hunting videos — far beyond its original intent of suppressing so-called crush videos.

Roberts also kept for himself the opinions in Holder v. Humanitarian Law Project and Doe v. Reed, cases which involved speech in the context of the war on terror and a First Amendment challenge to the application of a state’s open-records law to a petition referendum.

At first glance, one might assume that Roberts’ majority opinions in these two decisions would disappoint First Amendment advocates, as the free-speech claimants lost in both instances. In Humanitarian Law Project, the Court upheld a statute that criminalized the giving of “material support” to groups designated by the secretary of state as terrorist groups. In Doe v. Reed, the Court ruled that the First Amendment does not prohibit the release of names on petition referenda in general.

A closer look reveals that Roberts showed some sensitivity to First Amendment jurisprudence. In Humanitarian Law Project, he discarded the government’s broadest argument that the ban against providing “material support” to terrorist groups did not trigger full free-speech review because the statute regulated only conduct, not speech. “The government is wrong that the only thing actually at issue in this litigation is conduct,” Roberts wrote in describing the law as a content-based restriction on speech.

In Doe v. Reed, the state of Washington argued that the First Amendment claim could be easily dispatched because the signing of a referendum petition is not speech at all, but akin to a legislative act. The chief justice rejected that argument, writing that “compelled disclosure of signatory information on referendum petitions is subject to review under the First Amendment.”

Nearly five years ago — when he was nominated to replace his former boss, William H. Rehnquist — I wrote in an analysis that “whatever else is said about nominee Roberts, he certainly has much experience with First Amendment law.”

Roberts’ majority opinions in the Court’s latest term proved he has used his First Amendment experience and added to it.