Chief Justice Roberts Is Reshaping The First Amendment

It’s been a big year for free speech at the Supreme Court. Two of the most high-profile cases argued before the court so far have revolved around free speech rights, four other cases on the docket this term involve free speech questions, and yet another case where the issue is paramount greets the court on Tuesday.

The court today is hearing arguments on whether the state of California is trampling on the free speech rights of crisis pregnancy centers — nonprofit organizations that do not perform abortions and encourage women to seek alternatives to the procedure — by requiring them to post notices explaining patients’ ability to access abortion and other medical services. In December, attorneys for a baker at Masterpiece Cakeshop in Colorado argued that a state anti-discrimination law violates his free speech rights as a self-described cake artist by requiring him to make a wedding cake for a gay couple. Last month, the justices heard oral arguments in a case about whether state laws allowing unions to require nonmembers to pay fees violate those employees’ right to free speech.

Whichever way the rulings come down this spring and summer, it’s almost certain that the winning side will include Chief Justice John Roberts, who has spent his 12-plus years at the helm of the high court quietly carving out a space as a prolific and decisive arbiter of free speech law. Supporters and critics both agree that during his tenure, the court has dramatically expanded the reach of the First Amendment by striking down a wide range of statutes for encroaching on free speech rights. And Roberts has authored more majority opinions on free speech than any other justice during his tenure, signaling that this is an area where he wants to create a legacy.

But just what that legacy will be is highly contested. Roberts’s admirers argue that his commitment to the First Amendment transcends ideological boundaries. But others contend that his decisions don’t protect speech across the board. Instead, they say that Roberts is more than willing to allow the government to restrict speech when it’s speech he disagrees with — meaning free speech is becoming a legal tool that favors corporations over individuals.

The chief justice gets to decide who writes the majority opinion in any case where he’s on the winning side, which means that Roberts is able to stake a claim over a particular area of law if he so chooses. And that seems to be what’s happening with free speech: As of the end of the 2016 term, Roberts had written 34 percent of the free speech decisions the court has handed down since he joined its ranks, and 14 percent of his majority opinions were devoted to the topic.¹² Even when he’s not writing for the majority, Roberts is rarely on the losing side: Out of the 38 free speech cases we counted,¹³ he voted with the minority only once.

The First Amendment appears to be a topic of deep personal interest for Roberts, and he’s not commanding the majority opinion in these cases simply to reinforce earlier decisions. Roberts has presided over — and participated in — a deliberate and systematic expansion of free speech rights in the realm of campaign finance and commercial speech. The court’s determination that campaign spending limits on corporations violated free speech in the 2010 case Citizens United v. FEC was just one in a series that struck down a range of campaign finance laws on First Amendment grounds and expanded corporations’ right to speech in other venues, like drug advertising and trademark regulations.

According to legal experts, these rulings represent a clear and unprecedented reversal of previous Supreme Court interpretations of the First Amendment, particularly with regard to corporations. Those interpretations began taking shape early in the last century, as the court only began to strike down federal statutes for abridging free speech after World War I. As it did so, it at first explicitly rejected the idea that commercial speech was constitutionally protected. In the 1970s and ’80s, the justices walked this decision back somewhat as it related to certain types of ads, but they continued to maintain that advertising remained categorically different from other kinds of speech, especially when it was presenting inaccurate information.

At the same time, the justices issued groundbreaking rulings that protected the speech of unpopular individuals and groups against government censorship. It was these cases, which involved government attempts to quash union picketing, student protests of the Vietnam war, flag-burning and Nazi protests, that established free speech as an essential protection for people with minority opinions who were in danger of being silenced by the majority.

This is decidedly not the principle that the Roberts court has embraced with its rulings on campaign finance and commercial speech. Starting in the 1970s, campaign finance laws restricting the flow of money into politicians’ coffers aimed to make space for more voices in the political sphere by preventing the wealthy from buying influence. But in the Citizens United case, the court ruled that the government couldn’t restrict the free speech rights of corporations simply because they were corporations — even if citizens with fewer financial resources were less able to command the attention of their elected officials as a result.

Although the Roberts court seems to be interpreting free speech in a new way with these decisions, some historians say that free speech has always been ideologically flexible. According to Laura Weinrib, a historian and professor of law at the University of Chicago, corporate titans like the Ford Motor Company were part of the early push for broader free speech protections precisely because they recognized the power of the First Amendment for advancing their own causes, while organizations like the ACLU strategically accepted a “neutral” vision of free speech that protected the strong (companies like Ford) as well as the weak (union workers seeking the right to strike) in order to secure early victories for labor rights. Those twin forces helped pave the way for today’s understanding of free speech under the Roberts court.

It’s that question of what free speech protections should do — and whether it’s acceptable to muzzle stronger voices if they’re drowning out weak or unpopular opponents — that may help explain the Roberts court’s rightward turn on corporate speech.

Burt Neuborne, a law professor at New York University and a former legal director of the ACLU, said that the liberal justices are willing to tolerate some restrictions on speech because they see them as necessary to build a fair society. “In this view, you can, for example, limit free speech when it threatens our democracy,” Neuborne said. The conservative justices, on the other hand, tend to view free speech itself as the goal. “They don’t care what happens afterward or who they’re affecting — they just want to get the government out of the business of meddling with speech,” he said.

This explanation is complicated, though, by the fact the Roberts court — and Roberts himself — has painted a muddier picture of other speech limits. Roberts authored opinions striking down a civil judgment holding the Westboro Baptist Church liable for damages resulting from church members picketing outside a soldier’s funeral, and a law prohibiting the distribution of videos showing animal cruelty. Those rulings are clearly in line with previous ones permitting flag-burning and Nazi protests. But Roberts also issued decisions or signed onto rulings that allowed the government to restrict the speech of students, even when they’re off school property, and limit the expression of public employees in a variety of contexts.

There’s disagreement about whether the Roberts court, by upholding these government restrictions on speech, is undermining its reputation as a court dedicated to a broad view of free speech. “It’s very much to Roberts’s credit that his Supreme Court has a genuinely expansive view of free speech that can’t be explained by political favoritism,” said Michael McConnell, a professor at Stanford Law School. He acknowledged that there are a few exceptions but said they aren’t significant or frequent enough to undermine his broader characterization of Roberts’s record.

But Genevieve Lakier, another University of Chicago law professor, disagreed. “The court does make judgments about when the government needs to restrict speech,” she said. “And in contexts like schools, or when the government says there are national security needs, it’s shockingly willing to allow those restrictions.”

Whether or not it’s fair to say that the Roberts court has been broadly protective of free speech, there’s little question that the court is reshaping it in ways that will resonate for years to come. And the cases this term could play a pivotal role in defining and clarifying that legacy — especially Masterpiece Cakeshop.

Neuborne predicted that the wedding cake case would be challenging for Roberts, but that either way, it would further illuminate his stance on free speech. “This case could have serious ramifications for nondiscrimination law,” Neuborne said. “But there is a free speech claim involved, so we’ll see how much of an absolutist Roberts is willing to be.”