If you didnt watch, i envy you. There was nothing new, republicans and democrats placed their assigned roles but we are not here to talk about that. We are talking about something more interesting, the Roberts Court. More than any other Supreme Court justice in recent history, john roberts has played a defining role in shaping our free speech block. Hes been more than twice as many majority opinions in this area than any of his colleagues and there is a certain result in 95 of the greek expression cases decided in his tenure, hes been in the majority. Hes taken the lead of nearly 80 of the time so theres Something Special about this, something that speaks to how john roberts sees the court. The first conference of report the roberts report, collins and hudson, each of whom is published more than ten books on free speech examined 56 cases handed down by Roberts Court from 2005 to 2020. He offers i open details looks at the cases and justices different approaches. Here to tell us about it are the office. Scholar at the University Washington school of law book editor and david hudson who serves as a Justice RobertLegal Foundation for individual rights in education and First Amendment fellow for the freedom form institute providing commentary on this Important Research larissa and bob revere. Professor of law at the university of Missouri School of law were the focus of her research in teaching is intersection of tort law and emphasis on free speech issues and social media. A partner at davis wright where he specializes in media, communications and Technology Law and a scholar at cato in which hes been my lawyer so i will turn over to don and then david to explain their studies. Thank you. What a delight it is to be here. I very much appreciate it. I would like to thank you for submitting, it is an honor. I am retired from the University Washington, i want to make sure that is in the record. When all subsequent cases, john roberts has written, one thing is undoubtedly concerned, dressed prudent, i mean speech and press. This is an area of particular interest. I am probably the most aggressive defender of the First Amendment. John roberts in a 2019 interview with former attorney general Alberto Gonzales is dean, im probably the most aggressive defender of the First Amendment and certainly on the case has been. They are so significant, some of the numbers, i will read this. Hes been the majority, 95 of the times in the 56 freespeech opinions in his tenure. 95 of the time. That means 95 of the time, the john roberts the First Amendment for opinions. The lead opinion to himself, almost 30 of the time, which itself is remarkable. Hes offered twice as many opinions and any of his colleagues. Moreover, hes been more majority opinions, john roberts one person has written more majority opinions when it comes to free speech and the total justice letter and spirit kegger combined. If you combine all of the majority opinions, there are still fewer than john roberts is. His total majority opinions number are the same as justices scalia, thomas, so if you combine them, their majority opinions, no greater in number than chief justice. While Justice Kennedy has often been seen as the. Man when it comes to First Amendment cases, during his tenure, john roberts offered twice majority opinions than Justice Kennedy so how is this with the record . You have to freak speech cases and 20 of the cases, 20 of the cases he participated in wheres roberts has done so in over 55 of cases that has come before him. Notwithstanding this area. Significantly, and mcculloch, hudson, they want to touch on this, the two most important opinions from the roberts course are Citizens United, decided in 2010, Justice Kennedy and the town of gilbert decided in 2015, content based for the analysis base, the two important opinion has been united. In terms of the liberal wing during her entire tenure on the court, Justice Kagan has had one majority opinion and Justice Breyer is in the 23 . From the gross which points when it comes to Campaign Financing cases and union free speech cases by the major, but robert is doing is recognizing First Amendment and they take exception to the fact that cases decided by the roberts course had been campaigned finance cases. In terms of this, theres a lot of talk about prudence particularly given the contributions to that by Justice Scalia and we are all originalists in one way or another today. That may be true in that text but its certainly not true in the Roberts Court. For all his discussions. In no free speech case has Justice Scalia ever go into extended discussions over the doors prudence. Once in the case, he did talk about that. But in terms of justice thomas, apart from concurrent student speech case and discussion in another case, brown versus entertainment, some discussion about intentional threats, he hasnt written very much in thought. He did write denial in 2019, New York Times decided. He may have a lot of originalists on the court but in terms of this, there is extended discussions here. I want to mention a couple of things before we go on, the First Amendment is more than what judges right and what professors go on about, it is loyal. Its important to keep in mind there like james bob, the ones who keep these when it comes to the litigation and a new face think that we will see a lot more of, kristen, you may know the name. A petition before the court, she also has another in this case so keep your eyes on those with the First Amendment in terms of Supreme Court litigation. Im happy to turn it over to my colleague now. So much for the opportunity to look on this product with you. Many thanks to cato. I want to talk about three things when it comes to in the First Amendment. Category, context and content. Those are all important in First Amendment methodology. The first. Is category. One way we determine whether speech is protected by the First Amendment is to determine whether its an unprotected category of speech. For example, u. S. Supreme court recognizes obscenities set in 1957 and the u. S. I didnt recognize action in brandenburg versus ohio 1969. These unprotected categories of speech leading to a society that protects freedom of expression. One of the hallmarks of the roberts support then it really nice unprotected categories of speech. The roberts course done this four times. It can in the u. S. Versus stephen, the u. S. Supreme court refused to recognize unprotected categories of images of animal cruelty. In 2011, the association versus brown, u. S. Supreme court refused to socalled violent video games. In 2012, the u. S. Supreme court refused to nice a new and unprotected category of protests by the Baptist Church and in 2012 as well, u. S. Versus alvarez, the u. S. Supreme court refused to recognize the new and unprotected category for purely false speech. Turning to context, context also matters specifically context, im referring to the status of speaker. It is a reality of modern versus Government Law the government has greater power to restrict speech when his employer, educator or mentor and chief. If youre a public employee, Public School student, a prisoner or member of the military, you have less freespeech rights than you would in general society. In this front, the Roberts Court has not been terribly protected of free speech so for example, in 2006, the u. S. Supreme court took a narrow of the First Amendment rights, something far less than what Justice Marshall took in 1974. In 2006, the u. S. Supreme court decided garcetti, the decision in which the u. S. Supreme court like a five before ruling, ruled when Public Employees speak, the constitution does not insulate them from discipline and they have no First Amendment protection. It doesnt matter how important speech is, it doesnt matter if the employee whistleblower. If the employees engage job duties speech, they have no First Amendment. In 2007, the Roberts Court by a five to four vote, failed to recognize detroits Public School students in morse versus frederick. Joseph broderick and several others held an eight by 14 although they were off campus, the limbic torch relays was in alaska so in context, its been differential schools and employers and certainly to prisons. In regard to content, probably so the chief methodological tool we have in First Amendment jurisprudence, the content discrimination is about. Probably expressed tellingly by Justice Marshall in Chicago Police department versus mostly in 1972. When he wrote above all else, First Amendment means the government may not restrict speech because of its message, ideas, subject matter content. For better or for worse, the content determination principle is the chief tool of what he said in 1994, no better alternative than that. In 2015, the Roberts Court decided was one of the most important First Amendment decisions in recent memory, versus town of gilbert. In arizona, they provide a very different treatment with her assigned was an ideological side, Political Science or temporary durational sign. Both the Federal District and ninth u. S. Circuit court of appeals ruled this arizona ordinance was content neutral because the underlying purpose of the law was not to discriminate against content review points. When it goes up to the United StatesSupreme Court, the u. S. Supreme Court Unanimously reverses but they do so under very different rationales. Justice Clarence Thomas was the other of the majority opinion. What justice Clarence Thomas said is we have to take the crucial first step. If the law makes distinctions based on content, then it content based and is subject to scrutiny. Justice is cajun wrote a concurring in which he essentially said no, a lot of times something that may draw distinction, does not have an underlying purpose of this commission. Thank you. Thank you. Fascinating stuff. Ill remind the audience if you have questions, you can submit them on our webpage on facebook and youtube platforms using cato. Ill turn it over to zelensky. I want to thank the Cato Institute for letting me speaker and my focus as a scholar has been on the media both you and new media so my remarks today will be focused on the Roberts Court and what it has had a media. Justice, the digital revolution. Reporters, editors, photographers and we have a 20 2015. Meanwhile, tech giants have become media giants who control our access to most of the content we see or receive. One might think in the line of the digital revolution, its taken lots of new and old media to clarify freedom of the press, whats the meaning of the freedom of the press today and how does it relate rights . And in fact, we have the story of the dog that didnt bark. They had taken a lot of cases and they had taken those cases to the court. Defamation is always a big case, the media is always interested in. Over the last 15 years, the u. S. Supreme court hasnt really done anything in those areas, or any of the other issues that the media are most interested in. With the cases they have taken, it is actually very little. Versus Fox Television stations, the Supreme Court had the opportunity to tell us whether fec can regulate broadcast decency still under the First Amendment, under all the president s from the Supreme Court said broadcast media, the pervasiveness, because of the scarcity of the airway and that line of reasoning broadcast media are different, its been challenged today when oftentimes cant tell what is broadcast over the airwaves or what they are getting the internet because it all comes through the same platform so the differential treatment of broadcast media seems to call out for potentially a new approach but the Supreme Court sidestepped the issue on a narrow issue of statutory construction we dont know if the First Amendment still entry broadcasters differently in terms of allowing content regulation didnt allow in other media. The Supreme Court just to up the case that will be interesting about broadcast media called National Association of broadcasters, National Association of broadcasters versus radial project. That case will address was known as cross ownership rule that prohibits a newspaper and broadcaster ownership of the media in the same market, designed to make sure there is a diversity of different voices and few peons viewpoints in the marketplace of ideas by restricting media and newspaper cross ownership. The Supreme Court in the case basically did not just scaremongering about news media and the dangers of the news media and the taking over the minds of our youth so the Supreme Court says theres no evidence that interactive violent video games are any different than news media that have come before and california cant restrict them from minors in the ways they were attempting to do. The only other case dealing with the media are not very instructive. There is one in which the court rack ignites is that all of us use social media is a public forum to get our views out which is true and useful but theres no telling what that might mean for future cases and in another case involving threats made over facebook, threats made over social media again the Supreme Court sidestepped the opportunity to tell us whether the facts as they occurred on social media change the First Amendment analysis in any consistent way and so really they have every turn have either avoided or sidestepped the opportunity to tell us Something Interesting about old media rights and new media rights in the last 15 years. Now, what is the Court Interested in . Obviously as you said previously the court is interested in First Amendment cases. They just arent that interested in media cases. They are interested in free speech cases as they affect the electoral process and in those cases they tried to set out very concretely a few key principles. They set out concrete issues that government limit our political spending or limit political speech and perhaps most famously they did that in Citizens United. Theres a whole line of cases enunciating this principle that limits political spending or womens political speech and the other principle that comes through absolutely clearly in the decision is that government may not put 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 and they have little to do with the media but there are some other cases that do establish precedence that really do benefit from unions. One of those principles that the Roberts Court has upheld is protection for unpopular speakers and so they have given broad free speech protection to funeral protesters about an unpopular speakers you could possibly imagine and then they have given broad protections to people who lie back about receiving a constitutional medal of honor so really its a speech that doesnt call out to us that it strikes us as having much value that the court has said that those types of unpopular speakers and unpopular speech deserve broad protection. I think that suggests that calls we are getting for regulation for example are going to fa