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Monday, February 18, 2013

Why no First Amendment?

So far this term, the Supreme Court has only one First Amendment case on its docket--Agency for International Deveopment v. Alliance for Open Society International, Inc., which considers whether a federal law requiring organizations to explicitly oppose prostitution and sex trafficking as a condition for receiving federal funds to provide HIV and AIDS programs overseas. This contrasts with the previous years of the Roberts Court, which had seen a general uptick in First Amendment cases from the late Rehnquist Court, to the tune of 10-15 cases per year.

Any thoughts, speculation, guesses, or general spitballing as to the drop-off this term? One-year fluke? No cert-worthy cases? Has the current Court reached a general consensus on First Amendment (at least Free Speech Clause) matters for the moment?

I participate in an annual end-of-term panel on the Court's First Amendment cases and the panel organizers last week circulated an email wondering what we should talk about (not sure we can get two hours on whether AIDS prevention programs are government speech for Rust purposes). One possibility is to try to speculate on what exactly is going on this year.

Update: And as if on cue. The case likely will be for next term, however.

Posted by Howard Wasserman on February 18, 2013 at 12:22 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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Because they are too busy with an astonishing THREE family law cases this term? (Perry v. Hollingsworth/United States v. Windsor; Chafin v. Chafin; and Adoptive Couple v. Baby Girl). This must be a new record for family law.

Posted by: Margaret Ryznar | Feb 18, 2013 2:07:07 AM

Avoiding challenges of Citizens United (5-4)?

Posted by: Shag from Brookline | Feb 18, 2013 8:43:47 AM

I was rooting (in vain) for the Court to grant cert. to Bowie v. Maddox (DC Circuit) and Byrne v. Jackler (2nd Circuit), two cases in which public employers required their employees to make arguably false written statements of fact under oath as part of official investigations, and then terminated the employees for instead making statements that the employees thought better reflected the truth. One employee's statement was part of an investigation of employment discrimination, and the other's was part of a police brutality investigation. In response to the First Amendment claims of both employees, both employers attempted to rely on Garcetti's "official duties" exemption from First Amendment protection.

Jackler, the police witness, eventually won in the 2nd Circuit, on the theory that there is a carve-out from Garcetti where one's superiors require speech that would expose one to perjury charges (the 2nd Circuit looks for a "citizen analogue" for speech made at work, and the relevant analogue was the ordinary citizen's interest in not perjuring oneself). Bowie, the government employment discrimination witness, lost on a similar argument, thereby creating a circuit split on the question whether false statements under oath required by one's superiors can be considered speech "pursuant to official duties."

I think it would be worth considering why there were not four votes to take up these cases. It might also be worth considering the broader point whether, under Garcetti, public employers ought to be able to discipline public employees for refusing to lie to the public, even where such a public lie does not carry with it the penalty of perjury.

Posted by: Scott Bauries | Feb 18, 2013 10:19:03 AM

Just a quick check of the premises-- has the Roberts Court really been deciding 10-15 First Amendment cases per year? This article (http://lawprofessors.typepad.com/firstamendment/2012/01/the-roberts-courts-selective-protection-of-speech.html) suggests that it's just under six. But it is interesting that there are so few this term.

Posted by: William Baude | Feb 18, 2013 11:02:31 AM

Including religion cases, the number goes up. And the higher 10+ figure reflects the last 2-3 terms.

The thing about protecting CU is that the votes in that case haven't changed--none of the five in the majority has left the Court. Even if we assume Kagan votes as Stevens would have, the decision itself is not in jeopardy.

Posted by: Howard Wasserman | Feb 18, 2013 12:50:55 PM

The recent grant of Cert. in a campaign contribution limits challenge might be seen as a means to expand Citizens United. But perhaps some of the 5-majority might be restless with the results of their decision as played out in 2012 elections. There might be some embarrassing data demonstrating the problems the 5-majority felt did not in fact exist.

Or did the Cert. come about from the 4-minority?

Posted by: Shag from Brookline | Feb 20, 2013 7:30:19 AM

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