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Monday, June 04, 2012

Free speech tea leaves

This Supreme Court term was lighter on free speech cases than the past couple of terms, with only four. Yet the Court has not yet decided any of them. The Court today decided Reichle v. Howards, from the March sitting, which really is more of a qualified immunity case than a pure free speech case. (In fact, the majority expressly avoided the question of whether the plaintiff's First Amendment rights were violated or whether a Bivens action is available for First Amendment violations). Of the three pure speech cases, two--FCC v. Fox Television and Knox v. SEIU--are the only two cases still undecided from the January sitting, and U.S. v. Alvarez is one of only two cases still undecided fom the Feburary sitting.

What can/should we read into this delay? Does it suggest a deeply divided Court? Does it suggest a number of concurring and dissenting opinions circulating? Does it suggest the absence of majorities or ongoing efforts to cobble together majorities? Moreover, does the delay suggest anything about which way the cases are going to come out? Perhaps none of this should be surprising given the nature of these cases. Alvarez (a challenge to the Stolen Valor Act) deals with a tricky issue of the constitutional status of false statements of fact and may have broad effects on a range of state laws prohibiting electoral falsehoods, as well as the place of seditious libel in the First Amendment. Fox deals with the validity of federal regulatory policy and the continued vitality of FCC v. Pacifica, a 30-year-old precedent. And Knox brings free speech into collision with ideological views of unions.

To the extent the Court is divided in many of theses cases, this would mark a significant departure from the past several terms, where (outside of campaign-finance), free speech cases mostly have been decided by strong majorities, whether upholding the pro-speech position (Snyder, Stevens) or rejecting it (Reichle was unanimous, although Justices Ginsburg and Breyer concurred only in the judgment). And, at least from a distance, the last two terms have shown a Court with a strongly civil libertarian position on free speech. As Lyrissa has argued, the Court has adhered to a broad view that speakers should be allowed to speak free from governmental restriction, with judicial suspicion arising only when government attempts to help someone to speak.

It just seems as if we have been waiting longer than usual to see if that view continues to prevail.


Posted by Howard Wasserman on June 4, 2012 at 10:21 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink


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SCOTUS watchers resemble Kremlin watchers during the Cold War. We speculate. Only 9 people and their law clerks know what is going on behind the curtains. But is it not a commonsensical speculation that the Affordable Care Act case is clogging up the works? It set a record for the most amicus briefs -- unofficially 136. See http://go.bloomberg.com/health-care-supreme-court/2012-03-15/record-number-of-amicus-briefs-filed-in-health-care-cases/. Many issues at cross purposes. We are likely going to need Venn diagrams to figure out all the holdings.

Posted by: Thomas E. Baker | Jun 5, 2012 1:44:24 PM

I went to the Alvarez argument and saw a Court split at least 6-3 (3 solid votes for the government - Roberts, Alito and Scalia - and 3 for Alvarez - Breyer, Ginsburg, Kennedy), and possibly 5-4. I was pretty surprised that we only got Elgin today. It leaves 14 cases outstanding for the next two weeks.

Posted by: Asher | Jun 11, 2012 5:54:22 PM

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