Roberts v. Free Expression

Equal Justice Under Law

Engraved above the entrance to the U.S. Supreme Court are the words “Equal Justice Under Law,” a reference to the Equal Protection Clause of the Fourteenth Amendment. (Photo credit: Mark Fischer)

During confirmation, John Roberts pledged to uphold judicial precedent. Now Chief Justice, his Court’s shredded it.

Deceptively straightforward, the First Amendment’s declaration that “Congress shall make no law… abridging the freedom of speech” has long frustrated judicial efforts to balance civil liberty and social well-being. Further complicating matters, the U.S. Supreme Court routinely updates its approach to free expression as the ideological composition of the bench shifts. The Chief Justiceship of John Roberts is no exception, but his tenure has been marked by contradictory logic that at times appears driven more by partisan than constitutional considerations. Without a uniform approach to free expression, the Roberts Court’s left a patchwork of inconsistent case law in its wake to hamper the legal system—and Americans’ rights—for decades. It makes for good politics, but it’s hardly good governance.

The past decade’s rulings on campaign finance present the starkest examples. The Rehnquist Court’s 2003 decision in McConnell v. Federal Election Commission established a clear standard on the federal government’s power to regulate private political spending. In their joint opinion, Justices Stevens and O’Connor noted that the Court had always opposed “the corrosive and distorting effects of immense aggregations of wealth” in the electoral process. Longstanding precedent held that “[t]o say that Congress is without power to pass appropriate legislation to safeguard… an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection.” For these and other reasons, they upheld the Bipartisan Campaign Reform Act (BCRA) in a striking victory for reformers. The conservative faction Roberts would soon join made its scathing dissent known, his future Associate Justices Scalia, Thomas, and Kennedy decrying the decision as an attack on free speech.

Four years later, newly-appointed Chief Justice Roberts joined the trio and fellow George W. Bush-appointee Samuel Alito to undermine McConnell in 2007’s Federal Election Commission v. Wisconsin Right to Life.  The previous case had affirmed BCRA’s constitutionality when political advertisements engaged in “express advocacy,” but the Wisconsin majority crafted an exception. By construing Wisconsin Right to Life’s (WRTL) message as “something other than as an appeal to vote for or against a specific candidate” or “its functional equivalent”—and therefore outside the express advocacy BCRA prohibited—a loophole was opened. Repeatedly calling the Act’s prohibition on advertising within 30 or 60 days of an election a free speech “blackout,” the majority opinions injected intense judicial skepticism absent in McConnell.

While the Chief Justice refrained from junking McConnell, his colleagues left little doubt of their intent. “When it comes to defining what speech qualifies as… express advocacy subject to a ban,” Justice Alito concludes, “the Court should give the benefit of the doubt to speech, not censorship.” Justice Scalia went further in his concurring opinion, asserting that the pro-regulation groundwork in Austin v. Michigan Chamber of Commerce “was wrongly decided” and thus “McConnell’s holding… was wrong.” It’s worth noting that Scalia delivered impassioned dissents in each case.

With McConnell’s foundations substantially weakened by Wisconsin and others, the Court moved to override it entirely in 2010’s Citizens United v. FEC. Dismissing the possibility of a narrow ruling “without chilling political speech” from the outset, Justice Kennedy’s opinion immediately “consider[ed] the continuing effect of the speech suppression upheld in Austin.” Drawing on Wisconsin’s inherent skepticism of “the substantial, nationwide chilling effect caused by [the] corporate expenditure ban,” he went on to argue that “a statute that chills speech can and must be invalidated.” Kennedy overruled Austin and McConnell’s expenditure restrictions on these grounds, finding that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Any apparent corruption was instead legitimate influence or access that “will not cause the electorate to lose faith in this democracy.”

It follows that because the alleged corruption or the appearance of such didn’t exist, “no sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.” By rejecting a compelling state interest, Kennedy undid McConnell’s precedent authorizing the Bipartisan Campaign Reform Act. In a reversal so unexpected it provoked a rare judicial rebuke in President Barack Obama’s next State of the Union address, Citizens United invalidated many of its reforms on First Amendment grounds.

Each decision followed a similar line of constitutional reasoning; that non-individual spending on political advocacy constitutes political speech deserving of First Amendment protection. More broadly, they found free expression far more compelling than any potential electoral distortion. In voiding more recent precedents with which they disagreed, the majority relied on decades old decisions to back their arguments—though Kennedy, referring to Austin (1990) and McConnell (2003), cited “the [precedents’] antiquity” as a primary reason not to afford them the protection of stare decisis. Nevertheless, the Roberts Court’s campaign finance decisions largely agreed in logic and theme. When compared to more recent decisions, however, the pattern breaks down.

While not strictly a free speech case, the expressive electoral issues central to Crawford v. Marion County Election Board (2008) present a conundrum given the arguments advanced for campaign finance. In Wisconsin, Chief Justice Roberts rightly noted that “the Court has long recognized ‘the governmental interest in preventing corruption and the appearance of corruption’ in electoral campaigns.” Citizens United, however, held that any perceived electoral distortion resulting from First Amendment speech was nonexistent and thus ineligible for regulation. Importantly, even if there was distortion, rights of political expression would likely prove more compelling than the majority-spurned state interest.

But the majority found differently in Crawford. Though “the [Crawford] record contain[ed] no evidence” of any electoral distortion the “Voter ID law” at issue would prevent, “there is no question about the legitimacy or importance of the State’s interest” in “preventing election fraud” and protecting “public confidence in the integrity of the electoral process.” More so than any other, voting is the ultimate form of political expression. To limit individuals’ voting rights severely curtails their ability to effectively participate in the political process, a reality seemingly in line with Citizen United’s triumphant defense of said participation. Instead, the majority ruled in favor of admittedly nonexistent electoral distortion at expression’s expense. It’s a telling thematic contradiction that legitimized copycat legislation nationwide.

Likewise at odds with the new standards for campaign finance, the Roberts Court’s rulings on unions’ First Amendment rights seem to stifle rather than encourage political speech. The 2012 case Knox v. SEIU, Local 1000 saw a strong 7-2 majority agree that “when a union imposes a special assessment or dues increase” not disclosed in the regular yearly assessment, “it must provide fresh notice and may not exact any funds from nonmembers without their affirmative consent.” This was in relation to new union dues for overtly political purposes and was expected given the member-nonmember relations standard established in Teachers v. Hudson (1986). But a 5-4 majority then took the matter further, the Court’s conservatives imposing a new standard where nonmembers had to opt in to special assessments rather than opt out.

The difference is critical as the new standard was likely to cost unions substantial political funding. In his four-member Knox dissent, Justice Breyer noted that the majority’s approach would “reduce the financial contribution the union will receive even when a special assessment pays only for expected but perfectly legitimate collective-bargaining expenses.” The minority suggested their colleagues went beyond the scope of the case to purposely shackle unions with a unique new obligation; corporations have no such requirement allowing shareholders, investors, or others to opt out of their political expenditures. A comparison here with Citizen United’s pro-corporate rhetoric is illuminating.

An earlier union example, Ysursa v. Pocatello Education Association, again saw a four-member dissent where the majority proved contradictory. The case won a six member majority for its first and third holdings, but only five agreed on its second. There Chief Justice Roberts wrote that although “unions face substantial difficulties in collecting funds for political speech without using payroll deductions,” states were “under no obligation to aid [unions] in their political activities.” His argument upheld a ban on labor’s automatic deduction of dues and fees from public employee paychecks. The majority opinion claimed justification “by the State’s interest in avoiding the reality of appearance of government favoritism or entanglement with partisan politics.”

The logic seems sound, but it calls into question the near-unanimous decision two years prior in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. That case held that the federal government could, through the Solomon Amendment, withhold funding from universities which refused to allow military recruiters on campus to protest the so-called “Don’t ask, don’t tell” policy against homosexual service members. The majority argued definitively that although “military recruiters are… speaking while on campus,” hosting them does not mean that [the Amendment] unconstitutionally requires law schools to accommodate the military’s message.” On one hand, Rumsfeld clearly established that facilitating the military’s campus activities and recruitment did not constitute expression of support for its speech or policies. On the other, Ysura just as clearly stated that government’s passive facilitation of union activity constituted the appearance of support for their speech and polices.

The Court’s record is no less muddled on individual expression. In two 5-4 decisions, the conservative majority denied government workers whistleblower protection under the First Amendment and upheld suppression of student speech. In the first case, Garcetti v. Ceballos (2006), Justice Kennedy wrote that public employees “are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Plaintiff Ceballos, a deputy district attorney, claimed retaliation after voicing concerns that an affidavit police used to obtain crucial evidence was inaccurate. While the Court decided such speech is ineligible for protection because it may “impair the proper performance of governmental functions,” Justice Stevens argued in his dissent to recognize that as the point. If public employees “[reveal] facts that the supervisor would rather not have anyone else discover”—the very essence of whistleblowing—but are not entitled to First Amendment protections, the majority may well have chilled such speech into submission.

The second case of note, 2007’s Morse v. Frederick, concerned high school student Joseph Frederick’s suspension after displaying a pro-drug banner reading “BONG HiTS 4 JESUS” at a school-supervised but offsite event. Longstanding precedent from Tinker v. Des Moines (1969) teaches that “children assuredly do not ‘shed their constitutional rights… at the schoolhouse gate,’” allowing censorship of student speech only when it will “materially and substantially disrupt the work and discipline of the school.” Chief Justice Roberts held Frederick liable despite the extracurricular circumstances, his opinion reading, “We agree with [Principal] Morse… A principal may, consistent with the First Amendment, restrict student speech… viewed as promoting illegal drug use.” Dissenting Justice Stevens pointed out, however, that “the Court’s test invites stark viewpoint discrimination” in violation of the First Amendment’s ban on content-based censorship. “The principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner.”

“If there is a bedrock principle underlying the First Amendment,” the landmark decision Texas v. Johnson proclaims, “it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The Roberts Court certainly recognizes the maxim, ruling for example in Snyder v. Phelps that the Westboro Baptist Church’s military funeral protests, however detestable, were nonetheless lawful and afforded First Amendment protections. Yet such cases are relatively easy calls; the Court has always held traditional permitted protest, no matter the content, in high constitutional regard. More telling are the complicated controversies where the Roberts majority has ruled against individual free expression, refusing to shield high school students and government whistleblowers. Including earlier analysis only widens the apparent disconnect. The Roberts Court seems utterly lost in its First Amendment methodology, alternating between expanding and limiting its protections with no clear pattern of rationale.

There’s no denying the Supreme Court’s long and often contradictory history with free expression. But where former Chief Justices have struck an overarching theme and approach during their tenure, the Court under Chief Justice John Roberts has proven remarkably inconsistent. Tellingly, the institution’s public approval has plummeted as decisions increasingly reflect partisan allegiances rather than constitutional analysis or precedent. Roberts certainly recognizes his position, having recently crossed ideological lines to temper accusations that the bench has been hopelessly politicized. Given time, it’s possible this will translate into a more stable and coherent First Amendment doctrine.  But in the meantime, the country is left to crippling confusion at its highest court of law. Chief Justice John Marshall wrote in Marbury v. Madison that the fair weighing of competing laws and principles was “the very essence of judicial duty.” It’s truly a shame to see that duty so mired in contradiction as to be unrecognizable today.


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