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The Roberts Court’s Free Speech Double Standard

(January 8, 2012) – Scholars and advocates have been arguing for some time that the Supreme Court headed by John Roberts is not in fact the First Amendment champion that it is often claimed to be. Now, The New York Times has picked up the story.

In a January 7 article, Times reporter Adam Liptak describes a study that analyzes data from 1953 to 2011 and concludes that the Supreme Court under Roberts actually has a worse record on First Amendment issues than either of the two previous Courts – led by Warren Burger and William Rehnquist, respectively – and certainly much worse than the Supreme Court headed by Earl Warren in the 1950s and 60s.

But the significance of the study (by the Brennan Center’s Monica Youn, backed up by research from political science professors Lee Epstein and Jeffrey Segal) goes beyond statistics. It is the political context that is crucial in understanding when the Court upholds First Amendment claims and when it rejects them. As law school dean Erwin Chemerinsky, quoted by Liptak, points out, the Roberts Court has a “dismal record of protecting free speech in cases involving challenges to the institutional authority of the government,” particularly when the speech in question is by public employees, students, prisoners, or advocates of politically controversial ideas.

What the Roberts Court does protect is the right of corporations and wealthy individuals to spend unlimited amounts to influence elections. In its first six terms, from 2005 to 2011, it issued 29 First Amendment decisions and ruled for the free speech claim in ten of them. Six of the ten struck down limitations on expenditures in campaign finance laws.

Of the other four cases in which the Roberts Court vindicated free speech, three involved what some commentators have called “slam dunk” issues – clearly unconstitutional attempts by government to add new exceptions to the First Amendment - for violent content in video games, images of cruelty to animals, and offensive protests at funerals. The fourth case struck down Vermont’s ban on the sale of information about doctors’ prescription practices to drug marketers. Two of these four cases involved the free-speech claims of large corporations (video game manufacturers and drug companies). The Roberts Court decisions that narrowed First Amendment rights, by contrast, have involved public employee whistleblowers, students holding a “Bong Hits 4 Jesus” sign on a public street, and human rights activists who wanted to aid foreign liberation groups designated as terrorist by the U.S. government with peaceful training and advocacy.

The First Amendment prohibits Congress from “abridging the freedom of speech.” Over time, it has been interpreted to apply not only to Congress but to all branches of federal, state, and local government. But obviously, what constitutes “the freedom of speech” is open to differing interpretations. Many scholars and commentators do not agree with the Roberts Court that unlimited expenditures on political campaigns are protected by the First Amendment. Indeed, this debate goes back to a Burger Court decision in 1978, which rejected the argument that any First Amendment interest was served by attempting to level the financial playing field in political campaigns. (See FEPP's Campaign Finance Page.)

Perhaps a future Supreme Court will interpret “the freedom of speech” to protect controversial speech by workers, students, and humanitarian groups as vigorously as it now protects large corporations. Such a Court might also conclude that the First Amendment is better served through a diversity of voices than through domination by a powerful few.


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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