Erwin Chemerinsky, Not a Free Speech Court, 53 Ariz. L. Rev. 723 (2011).
Two of the most high-profile decisions in the Supreme Court's October 2010 term were clear victories for freedom of speech. In Snyder v. Phelps, the Court considered whether the First Amendment protects the right of protestors to go to military funerals to express anti-gay messages.' Matthew Snyder was a Marine who died in military service in Iraq. The members of the Westboro Baptist Church went to his funeral and, as is their practice, held up signs that condemned homosexuality and tolerance for it. Snyder's father sued the demonstrators for intentional infliction of emotional distress and intrusion upon seclusion. A jury in federal district court ruled in favor of Snyder and the judge upheld an award of both compensatory and punitive damages.
The Supreme Court, in an 8-1 decision, concluded that the imposition of liability for such speech violates the First Amendment. Chief Justice Roberts, writing for the Court, stressed that the speech lawfully occurred on public property, did not disrupt the funeral, and involved a matter of public concern. The Court explained that there are alternatives available to state and local governments to protect privacy and sensibility at funerals, such as creating buffer zones around them,' similar to what the Court has permitted around reproductive health care facilities. The case is important because the Court reaffirmed one of the most basic principles of the First Amendment: speech cannot be punished, or speakers held liable, just because the speech is offensive, even deeply offensive. In Brown v. Entertainment Merchants Ass'n, the Court, in a 7-2 decision, struck down a California law that made it a crime to sell or rent violent video games to minors under age 18 without parental consent. Justice Scalia, writing for the Court, held that the law is an impermissible content-based restriction on speech and that the government failed to prove that the law was necessary to achieve a compelling purpose." In perhaps the strongest language to date, the Court spoke of the First Amendment rights of minors and once more refused to recognize violent speech as categorically less protected by the First Amendment. The Court made it clear that such attempts by states to restrict the sale or rental of violent video games violate the First Amendment.' Based on these cases, it is tempting to generalize that the Roberts Court is strongly protective of speech. In fact, I recently heard Baylor University President Ken Starr proclaim that this is the most free speech Court in American history. As is often the case with generalizations from a small sample, this one is inaccurate and hides the reality: the Roberts Court frequently rules against free speech claims.
Part I of this Lecture looks at the Roberts Court's dismal record of protecting free speech in cases involving challenges to the institutional authority of the government when it is regulating the speech of its employees, its students, and its prisoners, and when it is claiming national security justifications. Part II examines a troubling new exception to the First Amendment that the Roberts Court has created for government speech-that the government can adopt private speech as its own and, accordingly, avoid the First Amendment. Part III analyzes the Roberts Court's aggressive decisions protecting campaign contribution speech. A careful examination of these cases reflects the conservative majority's hostility to campaign finance regulations, rather than a pro-speech commitment. I am certainly not denying that the Roberts Court sometimes rules in favor of free speech claims, as it did in Snyder v. Phelps and Brown v. Entertainment Merchants Ass'n. Rather, my claim is that the Roberts Court's overall record suggests that it is not a free speech Court at all.