Roberts court more than any other Supreme Court justice in the recent history john roberts has played a defining role to change our free speech law writing twice as many majority opinions in anyny colleagues b a once philosophicl and tactical 95 percent of those cases decided it is 15 years roberts has been in theaj majority so there is Something Special about this area of cases that speaks to how john roberts sees the court in the First Comprehensive report ron and david each of published looking at those 56 cases handed down by the Roberts Court the authors eyeopening study provides a l detailed look at of the justices differing approaches in here to tell us are the authors and david henson who serves as a legal fellow with individual rights and education with the freedom form is to. Larissa is dean and leading professor of lot university of Missouri School of law where the focus of the research and teaching is tort law and First Amendment with emphasis on freespeech issues and social media. Next a partner at davis right where he specializes in Media Communication Information Technology law and the new which capacity he is myy lawyer. And then now we will explain their study. And we expect on appreciate to talk about this with the Roberts Court. And its an honor to have both of you. So thank you. Just a little footnote im retired from the university of want to make sure that in the record with all subsequent biographies one thing that is undoubtedly certain is the First Amendment jurisprudence this is an area of particular interest i am probably the most aggressive defender of the First Amendment and john roberts in a 2019 interview with former attorney general gonzalez and now the law school dean. The most aggressive defender of the firstiv amendment because they are so significant with the numbers that we mentioned to you. At 95 percent of the times and those that were defied on decided during the tenure. The john roberts is assigning the free amendment and that is assigned himself almost 30 percent of the time and has authored twice as many majority opinions and moreover he has written moree majority opinions no other person has written more when it comes to free speech then justice breyer, ginsburg, so the mayor and kagan combined. All of their majority opinions still fewer than john roberts. As Justice Scalia and thomas and alito. If you combine theres they are no greater in number than that of the chief justice. And while Justice Kennedy has when it comes to First Amendment during his tenure john roberts has offered more than twice as many opinions then justice ginsburg. So how does this compare with her and quest record . And if you affirm freespeech cases 20 percent of the cases but roberts has done soon over 50 percent of the cases. In this areang significantly and my colleagues may want to touch on this. May want to touch on t. Opinions from the roberts course are Citizens United. From the liberal Vantage Point and when iwhen it comes to campn financing cases and free speech cases by their measure it is weaponize in the First Amendment and they take exception to the fact. Theres been a lot of talk given the enormous contributions given to that by Justice Scalia. We are all originalists in one odway or another today. That may be true but certainly not when it comes to the Roberts Court and its free speech jurisprudence. In no free speech case has Justice Scalia ever gone into any discussion of the jurisprudence. He did talk about thehe petition clause and in terms of justice apart from the student speech case and brown v entertainment merchants and a discussion about intentional threats he hasnt written very much in this area. He did have a certain case we may have a lot of originalists on the court but in terms of the free speech jurisprudence, there is an absence of any extended discussions. I want to mention a couple of things before i hand over to david. The First Amendment is what the judges right and its important to keep in mind people like paul clement are the ones who keep the First Amendment live in many respects when it comes to their litigation. A new face that is going to be seeing a lot more you may know the name the masterpiece she has a petition before the court involving customs and samesex weddings and another in a disclosure requirement casee so keep your eye on those when it comes to the First Amendment in terms of Supreme Court litigation and with that im happy to turn over to my colleague. Thanks, ron and thanks for the opportunity to participate in this project with you and many thanks to cato. I want to talk about three things when it comes to the Roberts Court and First Amendment. Those are category, context and content. Those are all important in First Amendment methodologies. One way that we determine whether speech ison protected by the First Amendment is to determine whether it falls into an unprotected category of speech. For example the Supreme Court recognized the fighting words exception in 1942 and over time the United States Supreme Court has narrowed these unprotected categories of speech leading to a body that protect us more a freedom of expression. One of the hallmarks of the Roberts Court has been its reluctance to recognize new unprotected categories of speech and the Roberts Court has done this four times. In 2010 in United States versus stevens, they refused to recognize the unprotectedd category of images of animal cruelty. In 2011 the association versus brown, u. S. Supreme court refused to recognize exception for socalled violent video games. The 2012 the Supreme Court refused to recognize a new unprotected category for funeral protests by the Westborough Baptist church and in 2012 as well, United States versus alvarez the Supreme Court refusedre to recognize a new unprotected category for purely. Speech. Turning to the context it matters in the First Amendment jurisprudence and specifically i refer to the status of the speaker. Its a reality of modern First Amendment law that the government has greater power to restrict speech when it acts as an employer, educator, warden or commanderinchief. Stated another way if you are a Public Employee or Public School student, if you are a prisoner or a member of the military, you have less free speech rights than you would in general society. Y. On this front, the Roberts Court hasnt been terribly protective of free speech. For example, in 2006, the United States took a very narrow view of the First Amendment rights of prison inmates. Something far less than what for example Justice Thurgood marshall took with martinez in 1974. In 2006 the Supreme Court decided a decision in which the United States Supreme Court by a 54 ruling ruled when Public Employees speak pursuant to their official job duties, the constitution doesnt insulate them from discipline, and they have no First Amendment protection. It doesnt matter how important the speechch is. It doesnt matter if the employee is a whistleblower, if the employee is engaged in official job duty speech, they have absolutely no First Amendment protection. In 2007, the Roberts Court also in a 54 vote failed to recognize the freespeech rights of the Public School students in the case known as the long hits for jesus case because several upended although they were upended as the torch for the relay was passing through juneau alaska. In context of the court has been quite deferential to the Public Schools and public employers and certainly to prisons. Now, with regards to content, probably still the chief methodological tool we have in the First Amendment jurisprudence is the socalled contentt discrimination principle. Its probably express most tellingly by Justice Thurgood marshall and the Chicago Police department versus mosley in 1972 when he wrote above all else the First Amendment means the government may not restrict speech because its message, its ideas, its subject matter and its content. For better or worse the content discrimination principle is the chief tool of Justice Oconnor said in 1904, no better alternative has come to light. In 2015, the Roberts Court decided one of the most important First Amendment decisionsd in memory. The case involved in arizona sign ordinance that provided very different treatment whether a sign was an ideological sign, political sign or temporary durational sign. Both a Federal District court and ninth u. S. Circuit court of appealshi ruled that this arizoa sign ordinance was content neutral because the underlining purpose of the law wasnt to discriminate against content review points. When it goes up to the United States Supreme Court, however, the United States Supreme Court unanimously reverses but they do so under very different rationales. Justice Clarence Thomas was the author of the majority opinion. What justice Clarence Thomas said is we have to take that crucial first step if the law does make distinctions based on content, then its content based and as such its subject is strict scrutiny. Justice essentially says no, a lot of times Something Like that doesntn, have an underlining purpose of content discrimination. Thank you. Thank you, david and ron. Fascinating stuff. If you have questions you can either submit them on the webpage if that is where you are viewing this, or through the facebook and twitter and youtube platforms using the hashtag cato. With that i will turn over. I want to thank the Cato Institute for letting me be here today. My focus as a scholar has been on the media, both old media, Mainstream Media and new media. My remarks today will be focused on the Roberts Court and what it had to say about the media. In the last 15 years since roberts has been chief justice, theres been a digital revolution. The newspaper industry has been very hard hit by the digital revolution, and today there are 47 fewer newspaper reporters, editors, photographers than we had in 2015. Meanwhile, the tech giants have become media giants to control ourf access to most of the content we receive. So, one might think in light of this, they would have taken new and old media casesew to clarify freedom of the press and how does this relate to the freespeech rights. But in fact we have the story of the dog that didnt bark. Prior cords had taken a load of interest and the media litigated the cases to the court. For example its a type of case that they are always interested in but in the last 15 years, the Supreme Court hasnt really done anything for the reporters privilegreportersprivilege or af issues the media are more interested in. From the few cases its actually very little. In fcc versus the television station, the Supreme Court had the opportunity to tell us whether the fcc can regulate broadcast decency under the First Amendment, so under the older precedents the court said the broadcast medium is different than others because of its pervasiveness, because of the scarcity of the airways and that line of reasoning had certainly been challenged when often times the consumer cant tell whats broadcast over the airways or what they are getting through the internet because it all comes through the same platform so the differential treatment of broadcast media seems g to collapse or potentiay its a new approach that the Supreme Court neatly sidestepped so we dont know if the First Amendment still can treat broadcasters differently in terms of allowing some content regulation we wouldnt allow another media. The Supreme Court took up the case that will be quite interesting about b broadcast media. Its called National Association of broadcasters versus prometheus radio project and that case will address the crossownership rules that prohibit a newspaper and a broadcaster from ownership of the media in the same market. Its designed to make sure that there is a diversity of ifdifferent voices and viewpoins in the marketplace of ideas by restricting ownership so the court is going totempt t aestm tan minors and the Supreme Court in that case basically didnt except fear mongering and the dangersd of media taking over the mind of the youth so they said theres no evidence interactive violent video games or any different and california cant restrict them in those ways they were attempting to do. The only other cases dealing with new media are not very instructive. There is one in which the court recognizes all of us use social media as a public forum to get our views out, which is true and useful, but theres no telling what it might mean for future cases involving the new media. Then in another case involving threats made over facebook orpre court sidestepped the opportunity to tell us whether the threat occurred onhe social media changed the First Amendment analysis in any significant way so at every turn they either avoided or sidestepped thete opportunity to tell us Something Interesting about the old media rights and new media rights in the last 15 years. Now, what is the Court Interested in . Obviously, as we said previously, the Roberts Court is interested in the First Amendment cases. They are just not that interested in the media cases. So, they are interested in free speech cases as they affect the electoral process. And in those cases, they try to set out veryet concretely a few key principles. They set out concretely the government limits on political spending are a limit on political speech and perhaps most famously they did a that in Citizens United, but theres a whole line or string of cases investigating the principles that limit the political spending or political speech and the a other principles that coms through clearly in the decision isio that the government may not impose limits on speech in order to level the Playing Field between the speech of rich and poor speakers, and again these are the principles that the Roberts Court seems most interested in. D they have little to do with the media but there are some other cases that do establish precedents that do benefit the old and new speakers. One of the principles that the Roberts Court has upheld is the protection for unpopular speakers. So theyve given broad free speecfreespeech protections to funeral protesters, about as unpopular a speaker as you could ever imagine, and then theyve given broad protections to people who lie about receiving a constitutional medal of honor. So it really is speech that doesnt call out to us that it strikes us as having much value, but the court has been those type of unpopular speakers and speech to the broad protection, and i think that suggests the calls we are getting now for the regulation of theul fake news ae going to fall on deaf ears in the Supreme Court because the Supreme Court is rightly going to trust each of us to decide whats true, whats false and what media we consume. So the laws a fair in the marketplace strand of the First Amendment jurisprudence is very strong and that stands to benefit the media. The other thing the court has done is theyve given a broad definition of what counts as a matter of public concern. So, for example in the funeral protest cases, they believe the speakers protesting the funerall servicemen were actually conveying the message of public concern about the link between military policy so that is a definition of public concern and that ends up being the kind of definition thats going to benefit all speakers and also speakers and then another factor that will benefit the media is the refusal to curtail First Amendment rights of the new media speakers based on fear of technologies and we already talked about the entertainment merchants case where they are not afraid of violent video games and indeed Justice Scalia in what i thought was a lovely rhetorical verse compares the violent video games to grimms fairy tale and basically says children can stand a bit of violence. They haveol ever since grimms fairytales. Really down to the benefit of the media i have to point out that there is alarm in the roberts cases that suggest the Roberts Court unlike its predecessors really doesnt believe the media is playing a special role in our democracy. Most famously, there is Citizens United that describes media corporations as elitist and yielding political power and influence disproportionate to the public support as being integral and saying concretely they are no more deserving of the special protection than any other corporation is. So, in other words, the media corporations and walmart are the same in the Roberts Courts i. Compound that with Justice Thomas skepticism about whether the media needswh special protections fromef defamation tt he has expressed in saying the New York Times versus sullivan should be overturned, and it creates an alarming Playing Field for those that might want to litigate on up to the Supreme Court. The other piece we will come back to you on this. Thank you for asking me to participatee in this event. I am particularly happy to be able to provide commentary on the paper because it really does come at a particularly important time bit of comment on its First Amendment jurisprudence, and i think appropriately so. This report provides hard numbers. I have to say for those of us in the private practice, we didnt necessarily see it coming, not that we doubted that it might have been and he might show a special interest, but as a private practice lawyer it isnt the sort of thing he would necessarily talk about. In helping me prepare for oral arguments in United States versus playboy entertainment groups, i guess as appropriate for anyone that aspires to be on the court and may be there someday and even go out of his way to express his views on the amendment but fortunately weve been the beneficiary of that thereve been a number of commentators like the strongest First Amendment court in history. Obviously not everybody agrees and it reflects the polarized nature of the times and you can sort of look at the areas in which thereve been cases affirming the First Amendment rights where the commentators have disagreed and it does reflect that political polarity. Ronin collins mentioned a few of them early on where there are very strong First Amendment opinions that established useful principles that we find can be used in many other contexts. The cases are somewhat more ambiguous in that regard but nonetheless, there are areas that sparked that kind of disagreement, and one of the criticisms in that regard has been that its results oriented. People are mostly upset because they thought the court reached the wrong result so it does beg the question of who is being results oriented theyve criticized the record saying it shows a strong record in the cases and i will get to those in a minute in subverting thes Campaign Finance laws and things like that and i think that is a particularly shortsighted view of the court because those cases described as the fringe or unimportant cases are part of what will be the Roberts Courts strongest legacy in the amendment area. Both ron and david talked about the cases in which they have refused to create new categories of unprotected speech, cases like defamation, integral. Those limited categories that are specifically defined and limited to which the court has said its not going to create new categories. Its remarkable that its done so in those areas. You wouldnt think of them as being particularly important. The Westborough Baptist church and funerals of servicemen. All of those seem to be areas its not the kind of speech that will elevate the republic and yet those are the cases in which and hearing it reaffirming the amendment principles are both more difficult and most important because ifmp one small point of criticism and this is something that we talked about in the past where it provides and says there are exceptions in the categories and there are 48 exceptions. But i think that we get to that extent only if we count every crime by the use of words as a separate exception will. So speech integral to some other the court did find it was contained on content based restriction and i think in the process watering down the process they did the same things restrictions on the ability i to engage of Campaign Advertising the candidates for the judiciary in florida so there areso areas where i think the court could have taken a stronger position and then lastly there are areas the court has not taken cases it might well have entertained generally in the area of compelled commercial speech there have been no cases in a long time in general. So overall i credit him for bringing that to light and i look forward to the rest of the discussion. Great. Thanks for that i will let ron and david respond and also throw in a comparison on the Rehnquist Court working in 1994 a through 2002 at the turn over with the Court Composition to find the top three justices on thesese issues were kennedy and Justice Souter it so that is an interesting a finding. We can get to all the questions but thank you very much. But thank you very much. So when you were talking about those technologies that Justice Alitos concurrence to be joined by the chief justice i will read two sentences fromm that that he is concurring from chief Justice Roberts and considering the application of unchanging constitutional principles to new and rapidly evolving technology this court should proceed with caution making every effort to understand that technology is legislators that is the implications that First Amendment institute so that case is currently before the court. I wanted to agree with bob there are certain areas the court has not addressed andd that is how does reed versus Gilbert Square with the commercial speech doctrine in the secondary effects doctrine . That is something the us Supreme Court created c with pure advertising secondclass treatment. And what is interesting about this is Justice Thomas klein do not see a philosophical justification than noncommercial speech that he wrote the majority opinion and brain that there is still some dissonance because if you read the read decisions to clinician obey commercial speech and then as you know all too well the secondary effect doctrine with that religious intrusion how do you see the courts ruling of the court can be punished to have a work of art with the samesex marriage or another conflict between the First Amendment and discrimination law on the case with the city of philadelphia that involves the city disqualifying the city from the foster and Adoption Program because it wont send kids to samesex couples but there is another aspect without having t to. I wouldnt put too much stock in that opinion. Will we face in the days to come is a conflict of came on claims of conscience and inhe that respect with the religion clauses to find themselves in combat. Anyone else . I filed the amicus brief and i was disappointed to see the court decide the case based on discrimination. While there was a case to be made for that i wanted to see from a broaderth civil and it is protected by the First Amendment but those are even broader with those discrimination grounds. And then with those discriminatory acts thing they are religious ask. To create a license for discrimination. And then involving the kentucky county clerk with those marriage licenses. But that is an example of a Government Employee declining to do their job. And then theyll take that head on. Going worried the difficulty the public as to distinguish between fact and opinion with a common news and not being able to understand what is true is dangerous and what do you think First Amendment protections have been abused by journalist today . That is the concern that where fake news underlies to go back on the protections of the media. Because thats one of the underpinnings of the thomas argument that the media gets too much protection. Looking at whats on the ground you know series of powerful people suing the media not just because they were within but was serious litigation talks for criticizing them in getting involved. But i would be concerned the key First Amendment law is the answer to the fake news pro problem. That the short answer to the question. While there is a followup of a different question that is putting this on facebook and asks if the justicehe department them into force a companyer like facebook with the threat under antitrust so talk about those kinds of threats to the First Amendment. That is what i was just getting to. Of the concern if the public cannot distinguish between fact and opinion i think the solution is to find a government solution to apply to the ni media. The media has to sort this out and they have to be responsible. So liberals and conservatives have been guilty trying to target the messenger. And then to impose restrictionspl simply because the public cannot distinguish. The next question is under brandenburg, one of the exceptions, could the president be successfully prosecuted for inciting imminent lawless actions setting aside the Justice Department permitting action against sitting president s . There already was a case brought in kentucky one candidate trump is at a rally and they were coming to protest candidate trump and allegedly he said get them out of here. They were then forcibly removed than the president also said dont hurt them. Dont hurt them. So eventually that is not incitement that doesnt fit within that narrow definition also further narrowed in indiana a few years later. But the First Amendment also protects donald trump benefiting greatly from that doctrine hyperbole. To liable under excitement is purely partisan with established First Amendmentir president. To add to that but usually not met by social media and then to think twice and refrain their ownio actions. I want to raise a question i think is important the questioners havent come up in the audience but in your report in the introduction mentioned the political salience of many freespeech claims has shifted over the years where in the sixties and seventiess 7si liberals and progressives pushing the envelope of speech to be subversive or antisocial. Now it seems it is them and libertarians. And then to push the court into a more speech protected a area. And with roberts being the media justice and more conservative and previous would have been . The biggest threat to our freedoms is when they are to our own ideology the First Amendment doesnt protect us then what is thedm purpose . So to see the freespeech battles becoming increasingly difficult in a variety of cases to really undermine the whole purpose of the firstir amendment. The other thing i wanted to mention is if you think the situation is bad in 2020 urge you to go back and look at the election of 1800 and certainly rivals and then as they were tv campaign ads. Heres a question from charles the First Amendment provides objections originally intended so how has the Roberts Court affected the protections where Citizens United . I dont think we know what protections were originallyec intended and there are reasons for that. And with that legislative history and that Constitutional Convention and the fact we knew what they were doing was the bulwark against answer said censorship i think there are trying to get those First Amendment values to try to affirm a protection for the democracy that tyranny destroys freedom with the amendment was simply to provide a p guarantee and not to be officially sanctioned censorship. What we have come to recognize america the 20th century now the 2 21st where you have different examples of censorship that then become court cases and the cases are decided with the First Amendment doctrine. And for that we have come to see what the First Amendment protects it goes back to the founding documents and that is censorship. How does the Roberts Courts you extend nongovernment institutions . For example organizations . Do with that what you will. Anybody have anything on that . One thing to look at in the case with the core did with the state action doctrine so that state action doctrine is still a central in a meeting feature of constitutional law. We will see more of that if they take the case we have to address that issue. And just to be clear that serve donald trump walking people on his own to feed if that is state action and there are similar cases on other social media not to put you on the spot but with that social media any thoughts on those kinds of cases . I started to write about social media walking before trump was ever on the scene i cannot imagine what would transpire. But the argument is if you open the comment section, you cannot suppress your critics are cherry pick what people say for citizens to come in and speak i would expect the court to hold that anti content discrimination principle the only thing that gives me pause i sense in the proper court anyone who needs help to speak doesnt find a sympathetic ear to the idea the speech needs to be subsidized by a thirdparty. I think we have run out of time. There is a lot of confusion in this area denoting public action the court recently did thatin where they talk about the internet generally where they recognize a public forum but not in the sense that is the government provided forr him. Or for google to adopt thoseci policies. So to use social media and allow Public Access and then try to censor it then it is a matter of state action. We have run out of time for further questions thank you to everyone for that. Using the moderators prerogative and everyone watching sorry we couldnt get to your questions the confirmation hearings are going on right now now he is the median vote in general not just First Amendment cases. When judgment becomes justice. I want to give you the last word also plugging where his report will be published one thing we can reflect and the Roberts Court. And with judge. Basically we know the vote is still in. She has government speec speech, president of communications she was part of a panel written and opinion with the executive orders. But we really dont know enough about her. And thanks to mymy colleagues happy to say with the symposium. And their other additional materials available on the cato website. The authors of the find study we are adjourned. 35 senate seats up for election incumbent david purdue is seeking a second term his challengers in georgia has been considered a safe republican seat according to the Cook Political Report that this race is rated as a tossup. Welcome. You are watching the debate series this is the general Election Debate for t candidates to fill the seat currently held by senator purdue
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