The 2014 Term & the First Amendment — Surprising twists & turns

By Ronald Collins
on Jun 19, 2015 at 11:26 am

With this Term’s First Amendment freedom of expression cases now complete, the Roberts Court has racked up forty-one such rulings since 2006. This Term the Court rendered three First Amendment rulings:

• Reed v. Town of Gilbert (9-0 per Thomas),
• Walker v. Sons of Confederate Veterans (5-4 per Breyer), and
• Williams-Yulee v. The Florida Bar (5-4 per Roberts for plurality).

The Justices also decided another free-speech case, but on statutory grounds – Elonis v. United States (7-2 per Roberts).

Voting record

Williams-Yulee was the Chief Justice’s thirteenth First Amendment free-expression opinion (majority or plurality) for the Court. He leads in the tallies for the Roberts Court, with Justices Kennedy and Scalia trailing with five opinions apiece followed by Justices Alito and Breyer. (Alito’s last was in 2014 in Harris v. Quinn and Breyer’s last in 2009 in Locke v. Karass.)

The unanimous vote in Reed was the thirteenth such vote rendered by the Roberts Court in a First Amendment free-expression case. This was only the third time that the Court vindicated a rights claim by way of a unanimous vote. The last one was in McCullen v. Coakley (2014).

Unusual twists: Cases decided

There were some unusual twists this Term. For example, Justice Clarence Thomas broke ranks and voted with the Court’s liberal bloc in the Walker case. It was also noteworthy that Justices Thomas and Scalia were on different sides. One of the last times that occurred in a First Amendment free-expression case was in Virginia v. Black (2003), in which Justice Thomas dissented while Justice Antonin Scalia joined the majority.

While it is rare, this Term the Chief Justice was on the losing side in a First Amendment free-expression case (Walker). This is the second such case in which this has occurred, the only other being Christian Legal Society v. Martinez (2010).

Equally unusual, in denying the First Amendment claim in Williams-Yulee, Chief Justice Roberts revealed, yet again, that strict scrutiny is not always fatal in fact. The last time that occurred was in Holder v. Humanitarian Law Project (2010), another case in which Roberts wrote for the Court. It is ironic that the Chief Justice, who is one of the Court’s strongest First Amendment stalwarts, was the one who authored the two opinions in which a law survived strict scrutiny analysis. Moreover, in light of the Williams-Yulee ruling and the debate over strict scrutiny review between Justices Thomas and Kagan in Reed, this Term’s cases may signal the beginning of some rethinking concerning standards of review in First Amendment cases.

In another unusual twist, the Williams-Yulee majority denied a First Amendment claim in a campaign-finance case. It is the first case out of the seven in which opinions were handed down during the Roberts Court era. It was also the first time that the Chief Justice denied a First Amendment claim in a campaign-finance case.

At the conceptual level, there appears to be tension between what the Court did in Walker (the license plate case) and what it did it in Reed (the religious sign case). On the one hand, the Walker majority gave states wide latitude to decide what messages it will permit or deny. On the other hand, the Reed majority was emphatic in maintaining that when laws single a “out specific subject matter,” they are “facially content based,” which automatically triggers strict scrutiny analysis. And that would severely limit the power of cities and states to regulate in this area (except in public forum cases). Or as Justice Kagan put it: “as the challenges to [sign laws] mount, courts will have to invalidate one after the other.”

Speaking of Reed, Justice Thomas’s majority opinion fortified the First Amendment test for analyzing content-based speech restrictions. Thus, if a law is content-based “on its face” – e.g., it distinguishes between political signs, ideological signs, or promotional signs — it will be judged to be content-based. These laws, wrote Thomas, are “subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” Such a standard would give states and municipalities relatively little wiggle room when it comes to regulating signs. Mindful of that, Justice Alito wrote a concurrence (joined by Justices Kennedy and Sotomayor) listing ten kinds of regulations that would survive a content-based challenge. And those examples, he stressed, were by no means “a comprehensive list.” Thus, he concluded: “Properly understood, today’s decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic objectives.” Three other Justices (Breyer and Sotomayor joining Kagan’s concurrence) sought to make the strict scrutiny test “far less rigid” in these kinds of cases.

So where does all that leave us? Well, you have: (1) the strict Thomas test (which five Justices joined, (2) Thomas’s strict test with at least ten exceptions (which three of the Justices joining the majority signed), (3) the “far less rigid” application of the strict scrutiny test (which three other Justices signed), and finally, (4) Justice Breyer’s new balancing test (onto which no one signed).

Cases in which cert. was denied

The Court declined to review a variety of First Amendment cases, including:

• Two cases challenging campaign-finance laws (Stop This Insanity Inc. v. FEC and Vermont Right to Life Committee, et al v. Sorrell);
• Two false campaign speech cases (Clayton v. Niska and Arneson v. 281 Care Committee);
• A conversion therapy case (King v. Christie);
• A Tinker student speech case (Dariano v. Morgan Hill Unified School District);
• A commercial speech tour-guide licensing case (Kagan v. City of New Orleans);
• A secondary effects adult bookstore case (City of Indianapolis, Indiana v. Annex Books, Inc.);
• A “material support or resources” to a foreign terrorist organization case (Mehanna v. United States); and
• A free-speech challenge to a law barring “religious worship services” in a broadly open forum (The Bronx Household of Faith v. Board of Education of the City of New York).

Unusual twists: Review denied

On the cert. side of the things, the Court’s denial of review in Walker-McGill v. Stuart seemed odd given the split in the circuits. The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violated the First and Fourteenth Amendment rights of the provider.

In its cert. petition, North Carolina stated that “[t]wenty-four states now require an ultrasound to be performed or offered to a woman prior to the performance of an abortion. Five states have enacted essentially the same display-and-describe requirement at issue in this case, and an additional four states require a physician to provide a simultaneous explanation of an ultrasound image upon a woman’s request.” Against that backdrop, the state further argued that the ruling in the Fourth Circuit sustaining the First Amendment claim ran counter to the ones in the Fifth and Eighth Circuits. Even so, review was denied. In a related case, the Court likewise declined to hear Pregnancy Care Center of New York v. City of New York (involving a compelled disclosure requirement for “crisis pregnancy centers”).

Insofar as this circuit-split state of affairs continues, we may be witnessing something of a balkanization of First Amendment free-expression rights in these abortion-related free speech cases.

Conclusion

Last Term many liberals took exception to the Roberts Court’s 5-4 rulings in McCutcheon v. Federal Election Commission (campaign finance) and Harris v. Quinn (compulsory support of unions). This Term, by contrast, the Court’s 5-4 rulings in Williams-Yulee (soliciting campaign funds in judicial elections) and Walker (specialty license plates) may have tempered their judgment. By the same token, if the Court’s 2013 Term 5-4 rulings drew cheers from conservatives, then this Term’s rulings may have produced jeers.

What proved decisive in this Term’s 5-4 judgments? Surprisingly, it was the votes of the conservative Justices – the Chief Justice’s vote and opinion in Williams-Yulee and Justice Thomas’s vote in Walker.

This Term also saw some powerful separate opinions – Justice Alito’s dissent in Walker and Justice Kagan’s concurrence in Reed. In the former case, Justice Alito took strong exception to the majority’s use of the government speech doctrine as a device for restricting First Amendment rights. His dissent is all the more important given the fact that he wrote for the Court in Pleasant Grove City v. Summum (2009) (applying the government speech doctrine to privately donated monuments placed in a public park).

In the latter case, Justice Kagan took strong exception to the majority’s inflexible application of a strict scrutiny standard of review. In other words, one Justice made a credible case that the Court was too lax; while the other Justice made a credible case that the Court was too strict.

And then there are all the conceptual variations set out in Reed in how to judge content-based laws. As Eugene Volokh has indicated, Reed may well spark much litigation, not only in sign cases but also in a mix of other contexts ranging from abortion clinic buffer zone cases to ones involving the application of the secondary effects doctrine in zoning cases.

In sum, the 2014 Term made for a surprising set of twists and turns in First Amendment law.