A Free Speech Year at the Court

The Supreme Court completed its 2010 term at the end of June with no blockbusters, few surprises, and an unbroken string of victories for free-speech plaintiffs. It was a year to take a deep breath before the onslaught of divisive cases next year: Same-sex marriage, the constitutional right of religious groups to choose their clergy without government interference, and enforcement of laws against illegal immigration are likely to be among them. We do not yet know whether the Court will tackle the health-care issue next year as well, but the fact that the two courts of appeals that have addressed the issue have come down on opposite sides makes it highly probable.

Despite the usual press rumblings about a “divided court,” almost half the cases—48 percent—were decided by a unanimous vote, and another 28 percent were decided with only one or two dissents. During his confirmation hearings, John Roberts declared his hope that the Court under his leadership would decide cases more narrowly, with greater consensus. This seems to be happening. For the last three years, the frequency of unanimous decisions has been steadily increasing.

After eleven years with no change on the bench, a new justice has joined the Court four of the last six years, with two Bush appointees and two Obama appointees. Interestingly, these two twosomes have been the most reliable voting pairs on the Court. John Roberts and Sam Alito voted together in 96 percent of the cases. Sonia Sotomayor and Elena Kagan voted together in 94 percent. Justice Anthony Kennedy remains the deciding vote in most close cases. He was in the majority 94 percent of the time. (No wonder advocates before the Court try to pitch their cases to him.) In 5–4 cases, he voted with the conservatives two-thirds of the time and the liberals one-third. The overall result is a moderate, but center-right, court.

For the first time in history, three women sit on the Court, one of whom is the first-ever Hispanic justice. Yet in some important ways the Court is less diverse than ever before. Every one of the justices attended either Harvard or Yale Law School. Those are narrow and elite environments with distinct perspectives and are scarcely representative of the legal profession, let alone the nation. Surely presidents could find good justices who went to school elsewhere. Only one justice, Kennedy, grew up and practiced law in the West. One, Thomas, is from the South, and one, Roberts, from the Midwest. Four grew up in New York City. The good news is that every borough except Staten Island is represented. Four justices are former tenured law professors, which must be a record. Only two ever tried a criminal case. None has business experience, and none has ever run for elective office.

For the first time in decades, the ideological makeup of the Court perfectly aligns with its partisan makeup. The four liberals were named by Democratic presidents, and the five conservatives (counting Kennedy) were named by Republicans. Justice Stevens’ retirement ended the long string of liberal lions named by Republican presidents: Earl Warren, William Brennan, Harry Blackmun, David Souter, and Stevens himself. Democratic appointments have never turned out to be conservative. If Republican presidents had been as ideologically consistent as Democratic presidents in their appointments, American legal history would look very different.

The case with the greatest practical effect this term was Brown v. Plata, a 5–4 decision affirming a lower-court order requiring the state of California to release some 46,000 prisoners because of persistent defects in the prison health-care system. In dissent, Justice Scalia called this “perhaps the most radical injunction issued by a court in our nation’s history.” Hyperbolic, perhaps, but the decision does read like a throwback to the era when federal judges assumed control over schools, prisons, asylums, hospitals, and other institutions in the name of broad constitutional claims.

Congress erected high barriers to injunctions of this sort when it enacted the Prison Litigation Reform Act of 1995, and Justice Alito’s dissent makes a strong case that the substance of the statute was largely ignored in this case. But it is not clear that the state—represented by then Attorney General, now Governor Jerry Brown—was unhappy with the result. California’s three-strikes initiative has led to an uncommonly high incarceration rate, and cash-strapped state budgeteers might welcome the prospect of being relieved of the cost of caring for 46,000 prisoners. The serious legal question is whether this decision augurs a return to activist institutional-reform litigation in other states and contexts.

There has been a drumbeat that the Roberts Court is lopsidedly pro-business. The New York Times headlined an article on the subject “Justices Offer Receptive Ear to Business Interests.” A popular satirical photograph showed the nine justices wearing clothing with corporate logos. More seriously, the Senate Judiciary Committee conducted a hearing last June with the amusingly tendentious title “Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings Will Affect Corporate Behavior.”

Well, what are the facts? This year the Supreme Court heard eighteen cases in which private plaintiffs sued business parties for damages. The business defendants won nine of these and lost nine of these. There were nine cases in which government and business were on opposite sides. Business won five and government won four. The Court decided against business, and in favor of workers, in every single labor or discrimination case decided on the merits. In many of these business losses, the Court reversed lower-court decisions that went in favor of the business, and in many of these cases the Court was unanimous.

Of these cases, Wal-Mart Stores v. Dukes inspired the most commentary, and the most distortion. This was the largest class-action discrimination case in history. Three named plaintiffs attempted to represent the claims of every woman who had worked at Wal-Mart since the end of 1998. The question was whether this case could proceed as a class action, or whether employees who alleged discrimination had to prove their case individually. The Court unanimously held that class-action certification had been improperly granted because claims for money damages are “individualized” claims and therefore cannot be amalgamated in a mandatory class action.

It is important to note that the Court’s reasoning in this case protects the right of individual plaintiffs with strong claims, who otherwise would have been submerged in a legal action under the control of lawyers who are effectively independent of any clients. Class-action lawsuits notoriously allow plaintiffs’ lawyers to sacrifice the interests of the class in favor of judgments favorable to the lawyers.

In addition, by a 5–4 vote, the justices concluded that there were no questions of law or fact common to all members of the class. The plaintiffs’ theory of the case was that Wal-Mart had delegated hiring authority to individual store managers and that this led to unfavorable treatment of female applicants. The problem with this theory is that the decision to leave decisions to a lower level means precisely that no common employment policy is enforced at the corporate level, and thus, by definition, there can be no common questions. As the majority put it, decentralization “is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common and presumptively reasonable way of doing business.”

In other cases the Court held that the California Supreme Court’s rule that arbitration clauses are contrary to public policy if they forbid class actions is preempted by the Federal Arbitration Act, that states cannot bypass the need for enactment of environmental laws by bringing climate-change cases under the common law of nuisance, and that manufacturers of generic drugs, who are required by law to use exactly the same labeling as the branded manufacturer, cannot be sued for alleged defects in the label.

These decisions, and others, have been criticized for their supposed pro-business tilt. But for every case that went in favor of business, another case went the other way. In Matrixx Initiatives, Inc. v. Siracusano, a unanimous Court reversed a lower-court ruling that a drug company’s failure to make public reports of adverse drug reactions cannot be the basis for a lawsuit for securities fraud unless the number of adverse reports was statistically significant. That decision greatly increases the uncertainties of when to disclose such reactions and the companies’ exposure to liability if they guess wrongly. In Williamson v. Mazda Motor, the court held that an automobile manufacturer could be sued for failure to install lap and shoulder belts, even though federal safety standards did not require it. In FCC v. AT&T the Court held that a corporation could not invoke the exception in the Freedom of Information Act that exempts from disclosure materials that would “constitute an unwarranted invasion of personal privacy.” And in Erica P. John Fund, Inc. v. Halliburton Co., the Court held that plaintiffs can file securities class-action lawsuits without proving loss causation.

Overall, it is hard to escape the conclusion that the Court was simply deciding cases in accordance with its best reading of the law. Indeed, at the Judiciary Committee hearing on “Barriers to Justice and Accountability,” the senators must have been surprised by the testimony of the star witness: the general counsel of the Commerce Department under the Clinton administration, Andrew Pincus. Pincus told the committee: “Some observers contend that several of the Court’s decisions this Term effected a dramatic change from prior precedent and have significantly changed the law so as to favor business defendants.” Despite his partisan affiliation, Pincus saw no signs of a pro-business tilt: “In fact, it was the positions of the plaintiffs in these cases that departed very substantially from existing law. It is not at all surprising that the Court refused to embark on the radical courses urged by the plaintiffs in these cases.” The business cases, it turns out, were pretty much business as usual.

In any event, concerns about a supposed tilt in favor of business interests often relies on the implicit premise that when businesses win, real people—employees, consumers, investors—lose. Every case is different, but workers are not infrequently harmed when their employers are saddled with higher costs or unable to fire underperforming coworkers, consumers when they have to pay more for products, and investors when they have to pay damages for supposed fraud. Nationally uniform environmental and product-safety regulation by expert agencies typically is more sensible and cost-effective than haphazard interventions by uninformed juries. Businesses can do bad things and should compensate the victims of their wrongdoing, but they also employ workers, produce essential products, and generate profits that support pensions, college savings, and family budgets. In the frequent conflicts between tort lawyers and business defendants, there is no reason to assume that the former necessarily represent the public interest.

In the cases involving criminal law and law enforcement, the Court kept to a moderate path. It emphasized that federal courts must defer to earlier state court decisions when state prisoners petition for habeas corpus, that law enforcement decisions must be decided on the basis of objective indicators of probable cause or reasonable suspicion rather than the motivations of police, and that the exclusionary rule for improperly seized evidence is designed solely to deter police misconduct. Many of the pro-defendant criminal cases featured an alliance between Justices Scalia and Thomas, who insist on strict adherence to constitutional text, and the more pro-defendant liberal justices, against a pragmatic middle of Justices Roberts, Alito, Kennedy, and Breyer. It is not yet clear where Justices Sotomayor and Kagan will stand in these cases.

The dominant theme of the 2010 term was the Court’s vigorous enforcement of First Amendment rights. Free-speech claimants won virtually every case, even the close and difficult ones. The justices’ commitment to free speech, even in tough cases, usually cuts across the left–right divisions on the Court and must be seen as this Court’s most distinctive contribution to the ongoing judicial interpretation of our constitutional order.

The most gut-wrenching was Snyder v. Phelps. Members of a Kansas “church” make it a practice to travel to the funerals of fallen American servicemen and picket the services with hateful signs such as “God Hates Fags” and “God Hates the USA / Thank God for 9/11,” motivated by the apparent belief that American tolerance toward homosexuality, especially in the military, is the divine cause of both the 9/11 attacks and our military misfortunes. Albert Snyder, whose son died in Iraq in the service of our country, was the victim of one of these grotesque demonstrations and sued, understandably enough, for intentional infliction of emotional distress. The jury awarded him $10.9 million in damages, which the district court reduced to $5 million. The Supreme Court reversed, by an 8–1 vote, holding that the First Amendment protects the demonstration.

In an opinion by Chief Justice Roberts, the Court held that when speech addresses a matter of public concern (here, the supposed pro-homosexual policy of the United States and its military) and satisfies all content-neutral time, place, and manner requirements (the demonstrators kept to public property, approximately one thousand feet from the church), it cannot be subjected to damages on the basis of a jury determination that the speech is “outrageous.” “Outrageousness,” the Court explained, “is a highly malleable standard with ‘an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.’”

Legal experts and media editorialists almost uniformly proclaimed the Snyderdecision a great victory for the American constitutional commitment to robust debate, and so it was. The case should remind Americans just how exceptional that commitment is. In most Western democracies, speech of the sort at issue in the Snyder case would be subject not just to civil damages but to official prosecution. In Canada, a youth pastor was prosecuted and fined for writing a letter to the editor criticizing homosexuality; in Holland a parliamentarian was prosecuted (though ultimately acquitted) for criticizing Islam; in Sweden a minister was sentenced to a month in prison for preaching against homosexual conduct (though the sentence was ultimately reversed on appeal). In all of these cases the language used was much less extreme. Hateful though the demonstrators’ speech was in Snyder, we should be grateful that our courts are standing up against the international trend toward punishing speech on the ground that it is offensive to protected minority groups. This is part of what makes America unique.

But let us not be smug and complacent in our self-congratulation. If “offensive” or “outrageous” language of this sort had been uttered on an American college campus or to coworkers during the course of employment, the result might have been quite different. Harassment law, when applied to speech, operates on a premise opposite to the one that prevailed in the Snyder decision. In some locations (campuses and workplaces, but apparently not funerals) our law presumes that people are entitled not to be confronted with speech that offends on the basis of race, sex, sexual orientation, religion, or the like.

One federal court put it this way: “While [harassment law] does not require an employer to fire all ‘Archie Bunkers’ in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their coworkers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well.” The Office for Civil Rights of the Department of Education has embarked on a campaign to force American universities to be more aggressive in combating “sexist” speech on campus; even Yale University recently got a warning. It will be interesting to see what happens when the constitutional law of the First Amendment, articulated inSnyder v. Phelps, is applied to harassment law.

The hardest and ultimately the most interesting and troubling of the Court’s speech cases was Brown v. Entertainment Merchants Assn., which invalidated a California law prohibiting the sale of extremely violent video games to minors. The case produced an unusual lineup. Justice Scalia wrote the majority opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. The opinion was a sweeping and uncompromising rejection of any effort by states to regulate non-obscene messages to children, even in technologically novel forms, in the absence of scientifically valid proof of harm and efficacy. It was an opinion that could have been written by a Brennan, a Douglas, or a Black in the heyday of the Warren Court.

The majority held that regulating a category of speech, based on its content and solely when the speech is “directed at children,” is “unprecedented and mistaken.” What about the law prohibiting children from purchasing what the Court called “girlie magazines,” upheld in Ginsberg v. New York? Well, sex is different from violence, the majority stipulated, and it now appears that sexual content is the only legitimate basis for restrictions on minors under the First Amendment. Is that what the framers of the First Amendment understood? The majority does not think to ask.

“No doubt a state possesses legitimate power to protect children from harm,” the Court went on, “but that does not include a free-floating power to restrict the ideas to which children may be exposed.” With this reasoning the court now interprets our constitutional principles in such a way that it can be illegal to sell a Playboymagazine to a seventeen-year-old boy or a beer to a twenty-year-old veteran, but a state cannot make it illegal to sell to children of any age videos in which the gamer repeatedly commits incredible acts of sadistic violence. Is it really true that the sight of a breast or buttock is more dangerous to teenagers than playing games in which “victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces,” where victims “cry out in agony and beg for mercy,” where “blood gushes, splatters, and pools” and “severed body parts and gobs of human remains are graphically shown”? Maybe that is what the First Amendment means, but it seems counterintuitive.

Justices Alito and Roberts concurred in the judgment that the California statute is unconstitutional, but solely on vagueness grounds. (It is difficult if not impossible to tell what video games are banned under the poorly worded statute.) This is an important difference, because striking down the statute on vagueness grounds allows other states in the future to try again. As Justice Alito put it: “I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem.” Vagueness is a time-honored device for invalidating statutes on free-speech grounds without foreclosing the possibility of better-drafted forms of regulation in the future.

In my opinion, Brown v. Entertainment Merchants presented a proper occasion for the more restrained approach favored by Alito and Roberts. We have no consistent or coherent principle for determining when constitutional rights apply to minors and when they do not, and courts should be cautious about going too far.

Moreover, video games are not, in fact, the same phenomena as books, movies, or comic books. The gamer is not just “exposed” to “ideas,” he engages in conduct that simulates murder, rape, brutality, and torture. If virtue ethics has any experiential validity at all, repeated conduct over a period of time has an effect on human character. The studies introduced into evidence by California’s lawyers may have been “junk science,” but the underlying intuition that extremely violent gaming may harden and brutalize the souls of impressionable young people, habituating them to violence, is not so easy to dismiss. The majority effectively closes off any prospect of regulation. Alito and Roberts leave the door open. That strikes me as more consistent with judicial restraint.

Justices Thomas and Breyer dissented in Entertainment Merchants, but it is hard to imagine more opposite grounds for doing so. Justice Thomas argued that the original public understanding of the freedom of speech did not include the right to speak to minors without going through their parents or guardians. The California law does not make it illegal for minors to own or to engage in violent video games but only prohibits merchants from selling those games directly to them instead of to their parents. Justice Breyer argued that the social-science evidence is sufficient to support California’s effort to regulate, noting that the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, and other public-health organizations have concluded that violent video games lead to increased levels of violent aggression in children. The Thomas and Breyer opinions represent two opposite poles of constitutional legitimacy: historical meaning and scientific proof. In this case, the two came to the same conclusion.

Other speech cases attracted less public attention, but all were resolved in the same way: The free-speech interests prevailed. Vermont cannot prohibit pharmacists from selling—or “publishing,” if you prefer First Amendment language—information about what drugs particular doctors prescribe to pharmaceutical salesmen. This may be purely commercial activity, but the Court deems it speech and gives it constitutional protection. Justices Breyer, Ginsburg, and Kagan dissented. Arizona cannot give extra money to candidates for office when their opponents have raised additional funds. Political speech is at the apex of First Amendment protection, and the government cannot attempt to “level the playing field.” All the liberal justices dissented.

On top of cases from the preceding terms, such as Citizens United v. FEC(corporations and labor unions have the same right as any other group to express their opinions about politicians running for office) and Stevens v. United States (a federal law banning videos depicting violence against animals was ruled unconstitutional), this term’s cases make it clear that the Roberts Court has emerged as the most consistently and strongly free-speech-protective Court in American history. Don’t expect the New York Times to run any editorials on that theme, but it is true.

Other parts of the First Amendment, and especially religion, remain contentious. The only religion case of the 2010 term was Arizona Christian School Tuition Org. v. Winn. This case involved an Arizona law allowing taxpayers to claim a dollar-for-dollar tax credit for contributions of up to five hundred dollars to private organizations that give scholarships to children who attend nonpublic elementary and secondary schools, including religious schools. As a form of indirect aid for education that is neutral between religious and secular schools, the Arizona tax-credit scheme is certainly constitutional under the Court’s recent precedents, though an unrepresentative panel of the Ninth Circuit held otherwise. Instead of just reversing on the merits, however, a five-justice majority held that taxpayers who objected to the tax-credit program as a form of public support for religion and thus a violation of the constitutional prohibition against the establishment of religion did not have standing to bring the lawsuit challenging the program.

This was the fourth case in the last few years in which the Supreme Court has taken a narrower view of standing in Establishment Clause cases than it had in the past. Since 1968, in a case called Flast v. Cohen, the Court has allowed taxpayers to bring suit under the Establishment Clause even when they were not themselves injured by the challenged action, except to be offended by it. Under no other constitutional provision could plaintiffs sue on such a basis. The Court now appears to be bringing the standing rules for Establishment Clause cases more into line with the rest of the Constitution. In most instances, including Arizona Christian School, this does not produce different results. But it does have the salutary effect of reducing the courts’ involvement in these contentious and often largely symbolic cases.

It is noteworthy that this case drew the new justice Elena Kagan’s most impassioned dissent, despite the fact that her own deputy solicitor general in the Obama Justice Department advocated the position adopted by the majority. In her writings and confirmation testimony, Kagan seemed to espouse a less rigidly separationist approach to religion than that of her predecessor, Justice Stevens, but her Arizona Christian School dissent suggests otherwise, though she might well have wished to distinguish between standing, which has to do with the extent of judicial power, and the merits of the case.

My candidate for the best dissent of the term comes from yet another First Amendment case, Borough of Duryea v. Guarnieri. The case turned on the right of petition, which concerns our capacity to sue, lobby, or otherwise seek to influence government. At issue in the case was whether restrictions on the right of petition entail a different legal standard of review from those restrictions that limit freedom of speech. In cases involving government employment, freedom of speech has been limited largely to “matters of public concern,” but it is clear that, historically, the right to petition for the redress of grievances has included purely personal or private concerns. The eight-justice majority held that the Petition Clause is no broader than the Speech Clause.

In a brilliant, lively, and insightful concurrence, Justice Scalia took issue with that approach. (It was a concurrence because he concluded that, even under proper Petition Clause analysis, the plaintiff lost.) The framers of the First Amendment deliberately set forth a series of distinct rights—speech, press, assembly, petition, and religion—precisely because they raise different problems and are subject to different threats. As Scalia cogently points out, the core of freedom of speech is political speech, but that is not the core of the right of petition. “It is the Constitution that establishes constitutional rights,” he writes, “not the Justices’ notions of what is important, or the top numbers on their Petition Hit Parade. And there is no basis for believing that the Petition Clause gives special protection to public petitions.”

In recent terms, the Court has shown a distressing tendency to reduce all First Amendment rights to freedom of speech. Last term’s Christian Legal Society v. Martinez did this for freedom of association, and Duryea does it for freedom of petition. Twenty years ago, in the peyote decision, the free exercise of religion lost most of its special protection. Last year’s Citizens United decision would have been better reasoned if the Court had recognized that the case involved freedom of the press, which no one doubts applies to corporations, rather than speech. Each aspect of the First Amendment protects a different dimension of communication: Assembly or association protects the communal dimension involved in the formation of opinions; freedom of the press protects the ability to publish opinions to the public at large; petition involves communication with government itself; free exercise entails the right to practice as well as proclaim one’s faith. To reduce all these to “speech” is to lose sight of these nuances.

And so the Supreme Court completed its 2010 term. It was not an unimportant term; it never is. But it was a calm before the storm. Brace yourself. Next year we could see some fireworks.

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School. He was a Circuit Judge on the Court of Appeals for the Tenth Circuit.