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Academic highlight: Free speech and the Roberts Court

The Albany Law Review has recently posted its Fall Symposium on the Supreme Court’s free speech decisions.  Contributors discussed FCC v. Fox Television Stations, Inc. (fleeting expletives); Reichle v. Howards (criticism of Vice President Cheney); Golan v. Holder (copyright extension); Knox v. Service Employees International Union, Local 1000 (public sector union fees); and United States v. Alvarez (Stolen Valor Act), among other major First Amendment decisions over the last few years.

In his Foreword, Ronald Collins reviews the twenty-nine free expression cases handed down by the Roberts Court as of September 2012, and concludes that the Court has adopted “a new kind of First Amendment absolutism” in which expression is protected unless it clearly falls within  a traditional category of unprotected speech.  Helpfully, Collins provides appendices cataloging the Roberts Court’s First Amendment jurisprudence in which he breaks down the decisions by outcome, author, and the size of the majority in each case.

Rodney Smolla’s contribution criticizes the Court for failing to “adhere[] to any consistent and clear set of doctrinal principles when analyzing content-based regulation of speech” –a problem vividly illustrated by the splintered decision in Alvarez, in which no five members of the Court could agree on a single rationale for invalidating the Stolen Valor Act.  An essay by Robert Richards and David Weinert criticizes the decision in Fox Television Stations for failing to address the “looming issue” of whether the FCC’s content-based regulations are “obsolete.”  In that case, the Court concluded that the FCC did not give fair notice to broadcasters that fleeting expletives and momentary nudity could subject them to penalties for indecency, and thus did not address the First Amendment question that many hoped it would resolve.  Marjorie Heins’s contribution contrasts the Supreme Court’s response to the repression of political dissent during the Cold War with the Court’s decision in Holder v. Humanitarian Law Project , upholding the federal law criminalizing “material support” to any group designed by the government as a foreign terrorist organization

A transcript of the symposium features a debate between Floyd Abrams and Alan Morrison on the Court’s decision in Citizens United v. Federal Election Commission holding that the First Amendment protects corporate campaign contributions, as well as a panel discussion about the Court’s recent free speech decisions moderated by Adam Liptak, the Supreme Court correspondent for The New York Times.

Recommended Citation: Amanda Frost, Academic highlight: Free speech and the Roberts Court, SCOTUSblog (May. 31, 2013, 11:54 AM),