In February, Chief Justice John Roberts told students in Nashville that the justices routinely defy standard labels of “conservative” or “liberal” and declared that when it comes to free speech rights, “I’m probably the most aggressive defender of the First Amendment on the court now.”
But while that assertion may have merit in some areas of speech — particularly as Roberts has voted to lift campaign-finance regulations based on the First Amendment — an opposite pattern has developed in the final weeks of the current term.
The trend offers a reminder of how the circumstances of a dispute can scramble expectations, those held by the public or even a justice. Eight more cases are awaiting decision for the 2018-19 session, scheduled to end this week. One of the most awaited, involving extreme partisan gerrymanders, could resolve whether the First Amendment prohibits legislators from discriminating against people from the opposing political party by drawing district lines based on voting patterns and views.
Roberts partially dissented on Monday as the majority ruled that a federal prohibition on the registration of “immoral or scandalous” trademarks violates the First Amendment. The majority said the law unconstitutionally permits government to discriminate against expression based on the ideas or views conveyed.
The 2005 George W. Bush appointee countered that the term “scandalous” could be read narrowly, and constitutionally, “to bar only marks that offend because of their mode of expression — marks that are obscene, vulgar, or profane.”
In the dispute involving an entrepreneur who started a line of clothing called FUCT and tried to register for federal trademark protection, Roberts wrote, “The First Amendment protects the freedom of speech; it does not require the government to give aid and comfort to those using obscene, vulgar, and profane modes of expression.”
Late last month in a separate case, Roberts led the court to a ruling that makes it more difficult for people who contend a police officer arrested them in retaliation for protest statements or other free-speech activities to sue the officer. Writing for the majority in Nieves v. Bartlett, Roberts said any arrest would generally be lawful as long as an officer had probable cause — for example, because of aggressive behavior — for the arrest.
Without such protection for police officers, Roberts wrote, “policing certain events like an unruly protest would pose overwhelming litigation risks. Any inartful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation.”
Roberts was also in the majority last week when the justices narrowed the reach of the First Amendment in a public-access television dispute. By a 5-4 vote, the justices ruled that a private non-profit corporation granted a city cable franchise could not be regarded as a “state actor” for constitutional purposes and sued for violating the First Amendment. That case broke along conservative-liberal ideological lines, with Roberts and the other Republican appointees in the majority and the four Democratic justices in dissent.
Roberts was correct in his suggestion at Belmont University in Nashville that individual First Amendment cases often defy the usual conservative-liberal label and lineups.
Such cases can also flout assumptions about the best way to protect free speech. That was seen last June, on the last day of the court’s annual session, when the justices divided 5-4 over First Amendment rights for workers resisting union dues or “fair share” fees for collective bargaining.
Roberts and his fellow justices on the right held that states could not let public-sector labor unions force non-members to pay fees for collective bargaining, reversing a 1977 ruling.
Writing the dissenting opinion for those on the left, Justice Elena Kagan said the decision wrongly reversed the four-decade-old precedent that had allowed states to dictate such rules for workplace governance. Directly addressing the constitutional protections at issue, Kagan added, “And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”