The Roberts Court and Free Speech

Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

We have all certainly heard of the important Freedom of Speech cases that the Roberts led Supreme Court has decided.  Citizens United is probably the most prominent one that comes to my mind.  Of course, the Citizens United case promoted the ability of corporate entities to enjoy full Free Speech rights. Other important Free Speech cases that were decided by the Roberts Court include the military funeral case of Snyder v. Phelps, et al,(131 S. Ct. 1207 (2011) ) and the Brown v. Entertainment Merchants case (131 S. Ct. 2729 (2011) ) in California which overturned a California law which required parental consent for minors to rent or buy violent video games.  Because of these decisions and others, some scholars and constitutional law experts make the claim that the Roberts Court is the most pro-free speech Supreme Court in history!

I think that the attempt by some to put the Roberts Court on a pedestal when it comes to free speech cases is a bit premature and possibly misleading.  As Dean Erwin Chemerinsky suggests, the Roberts court has been less than friendly to employees and students making free speech claims. “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.”  Arizona Law Review

Let’s take a closer look at just one of the areas where the Roberts Court has not been the bastion of Free Speech.  As Dean Chemerinsky suggests the Roberts Supreme Court seems to forget about whose speech it is protecting when it comes to what I consider some of the groups who need the protection the most.  One case that Dean Chemerinsky reviewed really jumped off the page when I read it.  The case in question was Garcetti v. Ceballos, (547 U.S. 410 (2006) ).

The Garcetti case involved a District Attorney who believed that one of his witnesses may have lied in court and he wrote a memo to the Defense attorneys under the belief that he had a Constitutional duty to inform them of these facts and concerns.  Needless to say, his employer, The County of Los Angeles was not happy that justice may have triumphed and denied him an expected promotion and transferred him to a less than desirable position.  The Roberts Court in a 5-4 decision decided that government employees have no freedom of speech rights when it comes to their duties on the job.

“The issue before the Court was whether Ceballos’s speech was protected  by the First Amendment.  Although the Court has long held that there is constitutional protection for the speech of government employees, it ruled against Ceballos. The Court drew a distinction between speech “as a citizen” and speech “as a public employee”; only the former is protected by the First Amendment.  Justice Kennedy stated: “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”  The Court expressed great concern about the disruptive effects of allowing employees to bring First Amendment claims based on their on-the-job speech.  Justice Kennedy wrote that allowing such claims “would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents.”  The Court observed that civil service protections provide safeguards for employees against retaliation for their speech.”  Chemerinsky

The Roberts Court in the Garcetti case severely limited speech by government employees even though by doing so it would be limiting speech which they have stated in the Citizens United case would do disservice to Free Speech rights. “The case’s premise that the First Amendment protects only speech “as citizens” has no foundation in other case law. For example, in Citizens United v. Federal Election Commission, the Court protected the speech of corporations even though they, of course, are not citizens.29 The explicit premise of Citizens United is that more speech is better whatever the source;30 the effect of Garcetti v. Ceballos is that there will be significantly less speech. Moreover, government employees do not lose their citizenship when they walk into the government office building.” Dean Chemerinsky

Due to space and time constraints, I cannot review all the cases that suggest that the Roberts Court was not a champion of Free Speech.  Dean Chemerinsky also discusses cases related to students and prisoners and how the Roberts Court has not championed Free Speech for those groups.  I highly recommend that you read the Arizona Law Review article that is linked here.  The author, Dean Erwin Chemerinsky argues that the opposite might be true.  He asserts that when government interests and corporate interests are involved, Free Speech by employees and citizens is not so well protected by Roberts and his associates on the Court.  If more speech is what the Court states is the goal of the Freedom of Speech, why should it matter who is doing the speaking?

If whistle blowers do the right thing and speak up and disclose an injustice being done by or allowed by the government or corporations, why should their Free Speech rights be left outside the building?  Doesn’t this type of decision actually defeat the real purpose of the Freedom of Speech as outlined by the Roberts Court in the Citizen United (130 S. Ct. 876 (2010)) case? How useful and effective can Freedom of Speech be if it is limited to cases that are obvious and preferred by the government and corporate interests?  Wouldn’t it be in society’s best interest that the truth is actually disclosed in a criminal case?  Let’s hear what you think?


Citizens United v. Federal Election Commission

Snyder v. Phelps, et al

Brown, Governor of California, et al, v. Entertainment Merchants Association, et al

Garcetti et al,  v.  Ceballos

27 thoughts on “The Roberts Court and Free Speech”

  1. rafflaw, this is a great topic. I can’t determine a trend with this court, but my take is that it is more protective of commercial and institutional speech and more tolerant of restrictions on individuals in all areas.

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