The title of this post sums up what seems to be the takeaway from the just-completed term of the US Supreme Court. Henceforth, your litigation strategy against pretty much any governmental action should be to claim a First Amendment violation. If this term is any indication, you’ll probably win.
The most bizarre decision, of course, is the big campaign finance case announced yesterday, in which the Court held (5-4) that the First Amendment forbids a state from adopting a “triggering” mechanism for public financing. I’ve written about that case already, and won’t repeat myself here. Suffice it to say that it seems curious for the First Amendment to outlaw a means of increasing the amount of political speech.
Here’s another example. Vermont had a law prohibiting pharmacies from selling prescription information (in which doctors were identified) to data-miners and drug-marketing firms without the doctors’ consent. The data-miners and pharmas objected: free speech, they cried! We want to market our drugs to doctors, and we can’t do so nearly as effectively without the prescription data!
Note that Vermont was not regulating speech. What Vermont was doing was regulating the sale of data. It just so happens that a certain category of “speech” – marketing drugs directly to doctors – was rendered more difficult by Vermont’s law. As Justice Breyer explained in dissent,
Vermont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product…. [Also,] Vermont’s statute is directed toward information that exists only by virtue of government regulation…. [U]ntil today, this Court has never found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate—whether the information rests in government files or has remained in the hands of the private firms that gathered it. Nor has this Court ever previously applied any form of “heightened” scrutiny in any even roughly similar case.
But even that tenuous connection to “speech” – making it harder to market stuff – was enough for six Justices to find a First Amendment violation.
In two other cases, the Court gave more traditional forms of “free speech” First Amendment protection against government attempts to regulate them. The Court held (7-2) that California’s law banning the sale or rental of violent video games to minors was unconstitutional. And, of course, the Court held (8-1) that the Westboro Baptist Church could not be sued for protesting at military funerals. I find it hard to argue with the result in either of those cases, but they are nonetheless part of the pattern of an increasingly robust, even strident, view of the First Amendment that seems to override virtually every other governmental interest, however tenuous the connection to actual “speech” may be.
In only one case this term was a First Amendment claim unsuccessful. That case concerned a Nevada elected official who, apparently adopting the litigation strategy suggested in my first paragraph, raised the truly outlandish claim that the First Amendment forbade the State of Nevada from enforcing its ethics laws requiring officials to abstain from voting on matters in which the official had a financial conflict of interest. This was too much even for this Court, which unanimously rejected the claim.
Activist judges? You betcha.
farnkoff says
How come R-rated movies (kids not admitted without an adult) haven’t been declared unconstitutional? Is it because the ratings system is “voluntary”? Isn’t it illegal to sell pornography to kids? Why does the Supreme Court think it knows where to draw the line on this stuff? Is it because they’ve seen some study proving that viewing explicit sex is inherently more harmful than participating in simulated violence?
What’s your understanding of this, David- should all laws restricting distribution of porn, violent films, etc. to little kids be held unconstitutional as an infringement on the ability to peddle product to as wide an audience as possible?
David says
there’s no constitutional issue because there’s no government action involved. The MPAA, the distributors, and the theatre owners are all private entities, so they can admit who they like, as long as they don’t run afoul of anti-discrimination laws.
As for the difference between marketing sex to kids vs. marketing violence, the Court’s opinion in Brown noted that there is a long history of carving an obscenity exception out of the First Amendment, whereas there is no similar history for materials depicting violence, however extreme. The opinion goes into that subject in some detail, so it’s worth a read if you’re interested.
Christopher says
Are those in jeopardy too?
David says
Commercial speech restrictions have long been subject to “heightened scrutiny,” i.e., restrictions must be “substantially related” to an “important government interest.” In the case of alcohol and cigarettes, it’s pretty easy: gov’t has an important interest in cutting down on the deleterious health effects, etc. of alcohol and cigarettes, and restricting advertising is substantially related to that interest. I’m pretty sure these restrictions have been litigated in the past, though I don’t recall the case off the top of my head.
centralmassdad says
Unlike alcohol and cigarettes, the “violent video games” issue seems like yet another “these kids today” issue, manufactured by little more than speculation by adults unfamiliar with cultural lives of the young.
I would put it in the same category as the Tipper Gore BS that resulted in my copy of Jane’s Addiction’s Ritual de lo Habitual album being a blank white, printed only with the text of the amendment, as attempts to ban Elvis because he swivelled his hips, and (though I am guilty of this) opposition to certain types of rap music. That is, not the business of government.
farnkoff says
Something about this doesn’t sit right, still. The government has carved out a right to ban “obscenity” outright, as far as I know, but the definition of obscenity has varied over time, and generally been narrowed. But I’m not sure what this has to do with an age limitation. I see age limitations as generally benign, as they apply to many aspects of social life already (driving, voting, drinking, dropping out of school, enlisting in the armed forces, etc). How it is an unconstitutional infringement on the rights of the speaker to limit his audience by age is not entirely clear to me. It seems more to be an infringement on the rights of minors to consume the fruits of that speech, which, as you note, is already allowed by social agreement and the permissable discrimination of movie theaters, etc. Probably I just need to mull this over for a little longer before I really “get it”.
howlandlewnatick says
“The devil quotes the scriptures for his own purpose.” –proverb
Mark L. Bail says
The (5-4) Court has no compunction when it comes to limiting free speech rights of students, in spite of the facts of the case.
The doctrine of the Roberts Court is pretty clear: corporate and private interests have nearly unfettered rights; individuals and the powerless do not.
My favorite example: Morse v. Frederick, an embarrassing decision, in which the United States Supreme Court held, contrary to the facts, that the First Amendment does not prevent educators from suppressing student speech, at a school-supervised event, that is reasonably viewed as promoting illegal drug use.
hoyapaul says
I agree with you as to Westboro Baptist Church, but disagree as far as the CA violent video game decision goes. As long as the obscenity doctrine exists, it make little to no sense to give violent video games protections and not pornography. That’s true both from a constitutional point of view and a policy point if view — if anything, violent video games, including ones where characters might beat up and/or rape women, are more harmful to children than pornography.
In any case, I would hold to my general First Amendment position that the First Amendment was meant to, and should, cover only political speech. Is that a hard line to draw sometimes? Sure. But it should be pretty clear under that standard that it should not be the role of the Supreme Court to strike down democratically enacted laws concerning commercial speech, violent video games, or campaign finance laws.
That’s the Court overstepping any sensible role and acting, yes, activist — as much as conservatives might still think only liberal judges engage in “activism.”
centralmassdad says
It is “a judicial decision with which I disagree.”
Nobody even means the same thing when they use the word:
Conservative: That liberal activist court used penumbras and emanations to invent a brand new right that didn’t exist yesterday.
Liberal: That conservative activist court overturned our law to ban gun ownership.
The antonym of “activist” is “brave.”
Trickle up says
These rulings are of a piece with the recent Arizona decision that David dissected yesterday.
Money has been “speech” for a while, but is now becoming the purest form of speech, on its way to becoming the only constitutionally protected form.
I shudder to consider the end of this process.