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Friday, February 21, 2014

The Supreme Court's Second Thoughts About the First Amendment

The Supreme Court's pending docket includes several cases that implicate the freedom of speech. Among them are McCullen v. Coakley, which deals with speech outside of health care facilities where abortions are performed, and Harris v. Quinn, which has potential implications for public employee unionism.

An interesting aspect of these cases is the intersection of the First Amendment with principles of stare decisis. In both McCullen and Harris, there's a possibility that the Court will reconsider a high-profile precedent. The Court doesn't strictly need to reconsider the applicable precedents (which are Hill v. Colorado and Abood v. Detroit Board of Education, respectively) in order to reach a decision. But it's worth thinking about the role that stare decisis may play if the Court concludes that the precedents are flawed.

At the outset, it's important to keep in mind that the relevant precedents rejected claims of First Amendment violations. From the perspective of stare decisis, the question is this: When is it appropriate to retain a precedent that improperly (in the view of today's Court) truncates expressive liberty?

In theory, the Court leaves open the possibility of retaining precedents on grounds of stare decisis even if they are unduly limiting of expressive rights. But in practice, the Court has tended to describe infringements on the freedom of speech as deeply and fundamentally worrisome, which makes it more difficult to argue that a given precedent should be retained notwithstanding its cramped conception of expressive liberty. That creates a puzzle as to the role of stare decisis in First Amendment jurisprudence.

Whether or not it happens this Term, it'll be useful to hear more from the Court about how the value of speech interacts with the value of doctrinal stability in undertaking the stare decisis calculus.

Posted by Randy J. Kozel on February 21, 2014 at 08:47 AM | Permalink

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