Transcripts For CSPAN2 Cato Institute Discussion On First Am

But were not here to talk about that, were here to talk about something more interesting, and that is the First Amendment jurisprudence of 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 laws. Hes written more than twice as many majority opinions in this area than any of his colleagues, and theres a certain resolve there, at once philosophical and tactical. In 95 of the Free Expression cases decided in his 15year tenure, roberts has been in the majority. Td hes taken the lead opinion nearly 30 of the time. So theres Something Special about this area of cases, something that speaks to how john roberts sees the court. In the First Comprehensive report on the Roberts Courts free speech jurisprudence, ron collins and david hudson examine the 56 such causes handed down by the6 Roberts Court from 20052020. The authors eyeopening study provides a detailed look at the cases and the justices differing approaches. Here to tell us about the approach are the authors, ron collins, who among other things is a book editor at scotus blog, and david hudson who serves as a Justice Robert h. Jackson legal fellow for the foundation for individual rights in education and a First Amendment fellow for the Freedom Forum institute. David to explain their study. [booing] thank you. What a delight it is to be here. I very mucher appreciate hudson of providing this opportunity to talk about our report. I would also like to thank bob and dean for participating. Its an honor to have both views join us today. So thank you. A little footnote, im retired from the university of washington. I want to make sure that its in the record. When the next major biography and all subsequent biographies of john robbins are written, one thing is undoubtedly certain. His First Amendment jurisprudence. And i mean speech, press and assembly. This is an area of particular interest to him. And she called him, i am probably the most aggressive defender of the First Amendment. Some said John Roberson at 2019 interview with former attorney general Alberto Gonzales and out Belmont Law School dean, im probably the most aggressive defender of the First Amendment. Let me just go over and repeat because there is significant some of the numbers that have been mentioned to you. The majority 95 of the times in the 56th free speech opinion during his tenure. 95 of the time. That means that 90 scent of the time that john roberts is assigning the First Amendment. He signed the opinion to himself almost 30 of the time. Which itself isth remarkable. He has authored twice as many maturity opinions than any of his colleagues. Moreover, he has written more majority opinions, john roberts, just as one person has written more majority opinions when it comes to free speech than the total of justice combined. To take the four liberal justices, and if you combine all of their majority opinions, they are still fewer than john roberts. His total majority opinion number sustained as Justice Scalia, thomas and illegal. So if you can combine those majority opinions, there certainly no greater in number than that of a chief justice. And while Justice Kennedy has often been seen as the point man when it comes to First Amendment cases, during his tenure, john roberts has authored more than twice as many majorities than Justice Kennedy. So, how does this compare with the record . Well when the rehnquist affirmed free speech cases and 20 of the cases. 20 of the cases he participated in fee affirmed a freespeech claim. Were roberts has done so in over 55 of the cases that come before him. Notwithstanding, his importance in this area. Significantly i my colleague may want to touch on this, the t two most important opinionsob thus far from the Roberts Court of course our Citizens United decided to thousand ten by Justice Kennedy and the campaignfinance case. And read verses the town of gilbert decided to thousand 15. The content scrutiny analysis case. The two most important opinions and read versus the town of gilbert. They were not written by the chief justice. In terms of liberal during her entire tenure on court, Justice Kagan has written one majority opinion. Justice breyer is in dissent with a significant number. Because from the liberal vantage point, particularly when it comes to campaignfinance cases and using freespeech cases, by their measure what Roberts Court is doug quote weapon icing the First Amendment. And they take quite exception to the fact that the most winning cases is decided by the roberts course have been campaignfinance cases. In terms of original jurisprudence particularly given the enormous contributions to that by Justice Scalia. In his Justice Kagan said we are all originalists in one way or another today. That may be true, but is certainly not true when it comes to the Roberts Courts and its free speech jurisprudence. With the writings and discussion and known freespeech cases with Justice Scalia ever go into any discussion to extended discussionnd for jurisprudence, the petition clause derail. [inaudible] he did talk about the education clause with jurisprudence aside from that nothing. In terms of Justice Thomas concurrent in a student speech case and some discussion in a videogame brown versus Entertainment Merchants Association. Some pleaded discussion with the United States about tttentional stress. Hes not been this area very much pretty in the deniable case 2019 the New York Times was wrongly decided in the New York Times. We may have a lot of originalists on the court. But in terms of the free speech jurisprudence there is a glaring absence of any extended discussions. Finally, just want to mention a couple of things before hande it over to david. The First Amendment is more than what judges right and what professors pontificate about. It is what lawyers do. Its very important to keep important people like, people like james bock, are the ones who keep the First Amendment live in many respects might comes to their litigation and a new phase i think we see a lot more is kristen waggoner. You may know the name for cheap successfully argued the case. She has a petition between the army with washington involving samesex weddings. She also has another petition in a disclosure requirement t case. So keep your eyes on those lawyers when it comes to First Amendment in terms of the Supreme Court litigation. With that im happy to turn over to my colleague. Thanks ron. Thank you so much for the opportunity to participate in this project with you. Many thanks to cato. I want to talk about three things when it comes to Roberts Court in the First Amendment. Those are category contact and content. Those are all important a in First Amendment methodologies. The first point is category. E one way we determine whether speech is protected by the First Amendment is to determine if it falls into an unprotected category of speech. For example the u. S. Supreme court recognized the exception in 1957. Plate recognized the fighting words exception in 1942 in new hampshire. And it recognized incitement sediment law versus ohio 1969. And over time the United States Supreme Court has narrowed theses unprotected categories of speech. Omading to a society that protects more 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 the United States versus stevens, United States Supreme Court refused to recognize the unprotected category of images of animal cruelty. In 2011, Entertainment Merchants Association versus brown, the u. S. Supreme court fused to recognize an exception for socalled violent video games. In 2012 on snyder versus phelps, the u. S. Supreme court, refused to recognize a new unprotected category for funeral protests by the Westborough Baptist church. And then in 2012 as well United States versus alvarez, the u. S. Supreme court t refused to recognize a new unprotected category for purely false speec speech. Now turning toe context, context also matters in First Amendment jurisprudence. Im referring to the status of the speaker. Its reality of modern First Amendment law that the government has greater power to restrict speech when it acts as educator, warden or commanderinchief. Stated another way, if you are a public employee, if you are a Public School student if you are a prisoner or if you are a member of the military you have less freespeech rights as you would in general society not on this front the Roberts Court has not been terribly protective of freespeech. For example in beard versus banks in 2006, the United States bring forth a narrow view of the First Amendment right of prison inmate. Something far less them Justice Marshall did. In 2006, the United States Supreme Court United States Supreme Court by five to four ruling world that when Public Employees speak pursuant to the official job duties the constitution does not insulate them from discipline. They do not have any First Amendment protection. Does not matter how important his speeches, it does not matter if the employee is a pure whistleblower. If the employees engage in official job duty speech. And 2007, the Roberts Court also by a five to four vote. Failed to recognize the freespeech rights of Public School students in a case called morris versus fredericks. Colloquially known as the bond for jesus case because Joseph Frederick and others upheld an eight by 14foot banner sink bog is for jesus there offcampus and were passing through juneau alaska. So on context again the Roberts Court is been quite differential to Public Schools to public employers. And certainly prisons. Regard to contents, the chief tool we havent jurisprudence as a socalled contentde discrimination principle. It is probably expressed most tellingly by marshall and Chicago Police department versus mostly in 1972 when he wrote above all else the First Amendment means the governmenten may not restrict speech because of its message, as ideasau, its subject matter or its content. And for better or worse the content discrimination principle is the chief tool is Justice Oconnor said in 1994. No better alternative has come to light. In 2015, the Roberts Court decided what is one of the most important First Amendment decisions in recent memory that is read versus the town of gilbert. The case involved in arizona ordinance that provided very different treatment. Whether a sign was an ideological sign, politicaldu side or a temporary durational sign. Both a Federal District court and the ninth u. S. Circuit aircourt of appeals ruled that this arizona sign ordinance was content neutral because the underlying purpose of the law was not to discriminate against content or viewpoint. Mike goes up to the United States Supreme Court however, the United States Supreme Court unanimously reversed. But they do so under very different rationale. And Justice Clarence thomas the author of the majority opinion. Justice Clarence Thomas said we have to take thatt crucial first step. If a law doesnt make distinction based on content, it is content based and as as such is subject to strict scrutiny. Justice kagan for example had a concurring opinion in which she essentially says that no, a lot of time something that may draw facial distinction does not have an underlying purpose of content discrimination. Thank you. Thank you david and ron, fascinating stuff but i will remind the audience that if you have questions you can either submit them on a webpage about is where god viewing this, or through our facebook and twitter and youtube lap form using the. With that i will turn it over. So i just 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 are focused on the Roberts Court and what it is had to say about the media. In the last 15 years, since roberts has been justice theres been a digital revolution. The newspaper industry has been very hard hit by the revolution and today there are 47 fewer newspaper reporters and editors photographers than we had in 2015. Meanwhile the tech giant access to most of the content we receive. And so one might think that in the light of this digital revolution that Roberts Court wouldve taken new and old cases to clarify freedom of the press. What is the meaning of the freedom of the press today and how does this relate to free speech rights. In fact, what we have is the story of the dog that did not bark. Prior court had taken a lot of cases of interest to the media. They have limited to those corporate defamation is always a big case. Ed is a type of case the media are always greatly interested in. But in the last 15 years, the u. S. Supreme court really is not done anything in the area of defamation. But the media are most interested in. The Supreme Court of the opportunity to tell us whether the ftc can regulate broadcast decency still under the first to mimic . Because of person face in this the scarcity of the airwaves. This has been challenged today when often times the consumer cannot tell whats broadcast over the airway what is cable what theyre getting through the internet because it came from the same platform. Broadcast media calls out for potentially a new approach. But neatly sidestepped that issue audit narrow issue of statutory obstruction. So we do not know if the First Amendment still can treat broadcasters differently in terms of allowing some content regulation that we did not allow another media. The Supreme Court case is going to be quite about broadcast media. That case is the National Association of broadcasters National Association of broadcasters versus radio project. That case will address was known as crossownership rules that prohibits from ownership of media in the same market. It is designed to make sure theres diversity of different voices and viewpoints in the marketplace ideas by issue. But that is just about it in terms of old media cases. And then in terms of new media cases, you do have a case, brown versus entertainment merchants which deal with an attempt restrict them from the hands of minors. In the Supreme Court in that case, basically did not accept fear mongering