More on the Roberts Court's First Amendment free expression jurisprudence: The 2021-2022 term — FAN 345

Last year David Hudson and I published a detailed analysis of the Roberts Court's First Amendment free expression jurisprudence: "The Roberts Court—Its First Amendment Free Expression Jurisprudence: 2005­–2021," Brooklyn Law Review. Those findings are updated in the data set out below. Some of the more significant takeaways from the last term are: 

1. Chief Justice Roberts was in the majority in all of this term's First Amendment cases, which means he continued to assign the majority opinions. This was so even in a case in which the First Amendment expression claim was denied and in which Roberts sided with the liberal majority (joined by Justice Kavanaugh) — a rather rare example.
2. Campaign finance cases continue to win (an unbroken record) in the Roberts Court.
3. LGBTQ free expression cases continue to come before the Court with review often granted.
4. Despite Justice Thomas' calls to review its First Amendment actual malice defamation cases, the Court continued to deny review in no fewer than three cases this term.
5. Despite the Roberts Court's enthusiasm with concerns about the Constitution's text and original meaning, when it comes to the First Amendment that zeal is largely absent, save for its discussions of the Establishment Clause. Justice Thomas is the exception, though he has found little support for such views — see e.g. Morse v. Frederick (2007) (Thomas, J. concurring).
6. When it comes to the government speech doctrine, the Court's ruling in Kennedy v. Bremerton School District suggests that when a free exercise claim is raised the application of the test may be relaxed (formally or functionally) in favor of allowing religious expression. If so, this could reflect a hierarchy of values within the First Amendment itself.
7. The Court's application of the Reed content-based test has been weakened somewhat; that is, it does not apply, in the words of the City of Austin majority, when there is no "content-based purpose or justification" — "location-based and content-agnostic" rules thus do not offend the Reed anti-discrimination principle.
8. The Court's refusal in Egbert v. Boule to recognize a Bivens cause of action for a First Amendment retaliation claim.

Related: Abortion protests

• Sarah Rankin, "High court marshal seeks enforcement of anti-picketing laws to protect justices," Associated Press (July 5)
• Dan Schere, "Supreme Court asks Elrich, Hogan to enforce picketing laws," Bethesda Magazine (July 2)
• Jeremy W. Peters, "First Amendment Confrontation May Loom in Post-Roe Fight," The New York Times (June 30)

This term the Roberts Court added another five free expression cases to its previous total (58) of decided cases, bringing the overall number to 63.

Number of First Amendment free speech claims sustained: 3

Categories of cases decided, results, and votes

• Government speech (sustained: 6-3/sustained: 9-0)
• Campaign finance (sustained: 6-3)
• Content neutrality (denied: 5-1-3)
• First Amendment retaliation (denied: 9-0)

Authors of majority opinions: Votes & total number of majority opinions

• Breyer (government speech) (9-0) (his fifth majority opinion)
• Sotomayor (content neutrality) (5-1-3) (her third majority opinion)
• Gorsuch (First Amendment retaliation (9-0) and government speech (6-3) (his first two majority opinions)
• Roberts (campaign finance) (6-3) (his 17th majority opinion)

Chief Justice Roberts & Justice Kavanaugh

• In a sign case, Chief Justice Roberts and Kavanaugh joined the liberals in denying a First Amendment claim, with Justices Thomas, Gorsuch, and Barrett in dissent with Justice Alito concurring in the judgment.

Lineup of dissenters

• Government speech: Sotomayor joined by Breyer & Kagan
• Campaign finance: Kagan joined by Breyer and Sotomayor
• Content neutrality: Thomas joined by Gorsuch & Barrett (Alito in part)

Justice Barrett 

• In the course of her first term on the Court, Justice Barrett authored no opinions (majority or other) in any of the Court's First Amendment free expression cases.
• Where the Court was divided in such cases, Justice Barrett voted with the conservative bloc in all of those cases (joining Thomas and Gorsuch in dissent here / joining conservative majority here / and also joining conservative majority here).

Textual and historical analysis: Still absent in free expression cases

Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.

— Justice Kagan dissenting in West Virginia v. EPA (2022)

Despite all the Roberts Court's concern with the texts and history of the Constitution, it has paid scant attention to those matters when it comes to the First Amendment save for the Establishment Clause.

• While the Court in Kennedy v. Bremerton School District turned yet again to an analysis of the "original meaning and history" of the Establishment Clause, such analysis continues to remain largely absent when it comes to the text and meaning of the speech, press, assembly, and petition clauses.
• And while in City of Austin, Texas v. Reagan National Advertising of Texas Inc. the majority did discuss the history of sign regulations, here, too, the text and history of the speech clause was not discussed.

Campaign finance cases: Unbroken record

• The trend continues: Prior to this term, the Roberts Court had sustained the First Amendment claims in all eight campaign finance cases it heard. This term, that trend continued with the Court's ruling in Federal Election Commission v. Ted Cruz for Senate.

LGBTQ First Amendment free expression cases 

• At the end of the 2019-2020 term and into the 2020-2021 term, Arlene’s Flowers Inc. v. Washington lingered on the Court's docket. This term, however, the Court denied review, and the petition for rehearing was subsequently withdrawn.
• The Court, however, did grant review in 303 Creative LLC v. Elenis.
• Kristen Waggoner was the counsel of record in both cases. She’s the General Counsel for Alliance Defending Freedom. Court watchers may recognize her name — Ms. Waggoner served as counsel in National Institute of Family and Life Advocates v. Becerra (2018) and successfully argued Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)

Defamation cases

"This case is one of many showing how The New York Times and its progeny have allowed media organizations and interest groups 'to cast false aspersions on public figures with near impunity.'"

— Justice Thomas

→ This term the Court denied review in three defamation cases:

• Tah v. Global Witness Publishing, Inc.
• Pace v. Baker-White
• Coral Ridge Ministries v. Southern Poverty Law Center (Thomas, J., dissenting from denial of cert.)

Related

• Jeff Kosseff & Matthew Schafer, "How States and Congress Can Prepare for a Looming Threat to Freedom of Speech," LawFare (July 5)
• Berisha v. Lawson (2021) (Thomas, J. & Gorsuch, J., dissenting from denial of cert.)

Topical sampling of cases in which review was denied

• Defamation (actual malice) and here
• Qualified access to FISC’s significant opinions
• State Bar dues
• Union dues, here and here
• Public sector unions
• Press discrimination, here and here
• Electronic harassment laws
• Campaign finance: intrafamilial contributions re family-run corporation
• Secret recording of oral communications
• Pre-publication review RE: Former “CIA” officer
• SEC prior restraint

2021-2022 SCOTUS term: Free expression & related cases

Cases decided

• Kennedy v. Bremerton School District (Gorsuch: First Amendment claim affirmed)
• Federal Election Commission v. Ted Cruz for Senate (Roberts: First Amendment claim affirmed)
• Shurtleff v. Boston (Breyer: First Amendment claim affirmed)
• Houston Community College System v. Wilson (Gorsuch: First Amendment claim denied)
• City of Austin, Texas v. Reagan National Advertising of Texas Inc. (Sotomayor: First Amendment claim denied)

Review granted

• City of Austin, Texas v. Reagan National Advertising of Texas Inc.
• Federal Election Commission v. Ted Cruz for Senate
• Shurtleff v. Boston
• 303 Creative LLC v. Elenis

Pending petitions

• Kowall v. Benson
• Swanson v. Griffin

First Amendment-related petitions

• Outdoor One Communications LLC v. Charter Township of Canton, Michigan (cert. denied)
• Egbert v. Boule (rejecting Bivens cause of action for First Amendment retaliation claim)

Petition withdrawn 

• Arlene’s Flowers Inc. v. Washington (petition for rehearing)

Applications for stay orders

• Netchoice v. Paxton (application denied)

Review denied

• Romeril v. Securities and Exchange Commission 
• American Society of Journalists v. Bonta
• Smith v. United States
• Marshall v. Supreme Court of the State of New Mexico
• Edgar et al. v. Haines
• Lundergan v. United States
• Clear Channel Outdoor, LLC v. Raymond
• City of Cincinnati v. Lamar Advantage Co.
• Kelly v. Animal Legal Defense Fund
• Green v. Pierce County
• Burns v. Town of Palm Beach
• Gilbert v. United States
• Roberson v. United States
• Woods v. Alaska State Employee Association
• Lamoureux v. Montana
• Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico
• John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
• Project Veritas Action Fund v. Rollins
• Troesch v. Chicago Teachers Union, et al.
• Dignity Health v. Minton
• Pace v. Baker-White
• Tah v. Global Witness Publishing, Inc.
• American Civil Liberties Union v. U.S.
• Frasier v. Evans (First Amendment and qualified immunity)
• Louisiana v. Hill
• Baisley v. International Association of Machinists and Aerospace Worker
• Crowe v. Oregon State Bar
• Boardman v. Inslee
• Pasadena Republican Club v. Western Justice Center, et al.

Last FAN

• FAN 344: "Summer & fall picks: New & forthcoming books on free speech”