Supreme Court term was a winner for First Amendment

Friday, July 1, 2011

WASHINGTON — If there was any lingering doubt about the conservative embrace of traditional First Amendment doctrine, the Supreme Court erased it this past term.

In two of the marquee decisions of the term — Snyder v. Phelps, involving virulent funeral protests, and the violent video game case of Brown v. Entertainment Merchants Association — conservative-led majorities invoked the Court’s liberal-era hallmarks of free-speech protection. They did so using language suitable, say, for a First Amendment calendar.

“Disgust is not a valid basis for restricting expression,” proclaimed Justice Antonin Scalia in his majority striking down a California ban on the sale or rental of violent video games to minors.

“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,” wrote Chief Justice John Roberts Jr. as he led the Court to rule that protests at military funerals may not be punished through state tort lawsuits.

But there’s more. A few days before inducting video games into the First Amendment pantheon, it did the same in Sorrell v. IMS Health for the business of data mining, which to some, at first blush, did not seem to be a First Amendment activity at all.

On the Freedom of Information Act front, the Court expanded public access by narrowing FOIA exemptions in two cases: FCC v. AT&T and Milner v. Department of the Navy.

Then there’s campaign finance. The Court this term continued its project of dismantling campaign-funding laws in the name of the First Amendment. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the Court struck down a state law that gave extra public funding to candidates who faced self-funded opponents. It was the sort of “level the playing field” legislation that the conservative majority has found increasingly distasteful and violative of the First Amendment.

First Amendment icon Floyd Abrams sees the Court’s campaign-finance rulings as consistent with its other speech-expanding decisions. At a recent American Constitution Society discussion on the Roberts Court’s First Amendment jurisprudence, Abrams said he could not understand why “people who care deeply” about the First Amendment don’t view the campaign-finance jurisprudence the same way he does.

But it is true that some liberals who believe in the corruption-fighting rationale for campaign-finance laws view the Court’s decisions in that area with suspicion. They fit the campaign-finance decisions, not into the Court’s pro-First Amendment tendencies, but into another conservative trend: favoring big business.

Likewise with the data-mining decision, which came close to giving commercial speech the same level of First Amendment protection as core political speech. In dissent, Justice Stephen Breyer expressed fear that the ruling would open a “Pandora’s Box of First Amendment challenges to many ordinary regulatory practices” reminiscent of the early 20th century’s Lochner era, when the Court struck down business regulations on constitutional grounds.

The conservative pro-First Amendment trend is not without exceptions. While noxious funeral protests and grotesquely violent video games won protection, former American Civil Liberties Union president Nadine Strossen pointed out at the ACS forum that public employees, their unions, prisoners and students do not fare as well before the Roberts Court. Echoing a recent Harvard Law Review article by First Amendment scholar Kathleen Sullivan, Strossen said the Roberts Court was “emphasizing libertarian values and de-emphasizing egalitarian values” in its First Amendment cases.

Columbia University president Lee Bollinger, also a longtime First Amendment expert, faults even the dramatic pro-First Amendment decisions for being “technocratic, bureaucratic, highly qualified.” Indeed, both Snyder and the video-game case are narrow decisions. A Senate committee on June 29 passed a work-around bill that purports to find a way to restrict funeral protests in spite of Snyder. And two justices in the video-game majority hinted that a better-drafted law restricting minors’ access to violent video games could pass muster.

But a win is a win, and former solicitor general Paul Clement offered a more practical, strategic view of the Court’s pro-First Amendment trend. Speaking at the ACS forum, Clement said the way to win a case before the Roberts Court is to convince the Court that the argument you are making is “a real or pure First Amendment claim.”

To say that a classic First Amendment argument is a sure winner before the current Court just about says it all.

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