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. In a hundred years historians will regard the Roberts Court as the bell weather of the decline of American Exceptionalism and the Warren Court and figures such as Hugo Black as high in the ranks for freedom as were some of the originalist Framers. When I listen to Alito and Scalia belting out these statements (not even posited in the form of questions) to counsel at the oral arguments I liken the accents and the eloquence to a colloquy on a New York tavern near the intersection of Tirty Turd and a Turd. I admired the days of Willaim Brennan, William Douglas and Hugo Black. Hugo’s concurring opinion in the due process sutticiency of the evidence standards in Jackson v. Virginia is superb. Such a contrast to the Citizens United and Garcetti cases. These two cases remind me of why we had to spend months in Nuremberg in 1945-46 putting the Germans in jail for dismantling their judicial system of protecting rigths before they commenced their genocide. Google: The Judges Trial if you are interested.

    If there is an opening on the Court in the next ten years (for this is a young Court) I pray that the President sends up to the Senate for confirmation an individual who is not from the DC Circuit, does not come glistening with a Yale degree and an accent from Newark. There is not one sitting Justice on the present Court who has ever defended a human being in a felony jury trial and knows what it is like to have someone’s ass on the line.

  2. Yes raff…..That is true….Starr is not a private citizen….so anything disclosed about him is fair game….

  3. On a side note….Maybe folks should be aware that Tort Law plays into this decision…..Free Speech is Free Speech….Regardless of its Origin…There is a price to be paid for Disclosure of Private Fact or Even Embarrassing Facts about a Private Citizen….I say this for personal reasons….But I was reading something rather interesting today….Even though the President of the US is a Public Figure…the First lady is considered a Private Citizen…. Therefore this is probably why the press has not ripped her more often..

    Public Disclosure of Private Facts

    The courts recognize four categories of invasion of privacy:[i]:

    intrusion upon one’s physical solitude or seclusion;
    public disclosure of private facts;
    false light in the public eye; and

    To establish a cause of action for invasion of privacy on the ground of public disclosure of private facts, the courts consider three elements[ii].

    the disclosure of private facts must be a public disclosure.
    the facts disclosed must be private facts, and not public ones.
    the matter made public must be one which would be offensive and objectionable to a reasonable person of ordinary sensibilities.


  4. raff,

    Basically what the Roberts Court has said….and not mere Dicta….That Defendants are screwed….That Brady has no real applicability…And if the Government decides to punish its employee for following Brady then it is harmless error….

    Good article…

    Don’t forget that Ken Starr is the Special Prosecutor, Solicitor General and former Federal Judge…before becoming President of Baylor…..

  5. raf, its a fantasy of mine that all these amoral bastards that have dragged this once proud nation to the edge of disaster have a ‘road to Damascus’ moment and reverse themselves. Assuming a miracle, could they even do this?

    I still maintain that these guys are communist agents & their goal is to so sully capitalism, so degrade human capital that the only outcome is a revolution that creates a communist system. Not that that is a good thing but I don’t see how it can be avoided given the direction we are being dragged.

  6. Gene

    i think “deformation speech,” is covered under “newspaper edited speech”.

  7. Frankly,
    I know a constitutional amendment has been proposed, but I would not hold my breath on this court changing their mind.

  8. Sorry for my ignorance on the issue but I have to ask. Lets pretend several of the corporate mafia see the mess they made with Citizens United & have a moral epiphany. They want to try and undo the damage. Could they take a case, say based on Montana’s law banning this sort of BS $=speech, hear the arguments & issue a ruling that basically negated their earlier one?

    Has anything like that ever happened or are we forced to endure this great evil for a couple of generations?

  9. Here’s a question: Both Snyder and Brown were decided after Citizens United, could it be that the expansive scope of Citizens United forced the Court to reorient its free speech jurisprudence to justify that holding? Then again Holder v. Humanitarian Law Project was decided after Citizens United, so perhaps not.

  10. This post deserves a lot of disucssion. Those lawyers who have handled First Amendment claims have a certain attachment. We do not want screwups to come along and make bad law. Right now this Occupy movement is in danger of making bad law in many jurisdictions.
    The prot3esters want to use the First Amendment but make big mistakes and will not listen to any smart about certain aspects. Such as pushing the envelope on camping out, tents and tarps. If you want to get arested so be it. Dont get arrested and then posit a First Amendment defense in your criminal case. They do not pick good forums. The best situation was in Nashville where the very name of the plaza is: “Legilative Plaza”. The Complaint in the case sets out the facts and the law very well. The case can be found on Pacer. Keppler v. Haslam, Case 3:11-cv-01040. If you are going to pettion your government for redress of grievances do it at leglistive Plaza which you can allege is in existence for that very purpose. That case was settled.

    The real bad case was in Saint Louis where they could not even spell the name of Kiener Plaza. (they spelled it Keiner) and they got clobbered by Judge Jackson. Compton v. St. Louis Metro Police Dept. Read this file on Pacer. They did everything wrong.

  11. Great post raff. I like J. Stevens’ dissent in Garcetti:

    Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.

  12. “Censored speech,”

    Don’t have it. Yet. Bills like SOPA and PIPA would be a step in that direction though. So are some of the cases from the Robert’s court. They censor your speech by saying that you have all the free speech money can buy even if you’re not a real person; i.e. some people have more free speech than others. In the age of mass media, that’s censorship by allowing monied interests to simply shout you down.

    “profanity speech,”

    Really don’t fucking have it unless it is used as part of incitement to imminent lawlessness or fighting words.

    “race speech”

    Nope. You can say nigger, kike, diego, chink, spic, mick, or cracker all you want. If you do so in such a way that people think you’re a hateful bigoted ass though, that’d be your problem.

    “hate speech”

    I’ll stipulate hate speech laws are ridiculous and what they cover are already illegal acts covered by others legitimate laws covering exceptions to free speech.

    “not politically correct speech,”

    Not at all. You’re free to say what you like. You are also free to be criticized for it.

    “deformation speech,”

    I’m going to assume you meant defamation. This is a legitimate limitation of free speech because it (and its refinements slander and libel) involve using lies to create trouble for people. It does, however, have an interesting defense: the truth.

    “bias speech”

    Nope. You can be as biased as you want. There is no law against faulty or skewed reasoning.

    “location speech”

    If you’re talking about the DHS imposed “free speech zones” around candidates and the like then you have a legitimate complaint on this one.

    “caustic speech”

    There is no prohibition on caustic speech unless it is used like the example of profanity up above (incitement to imminent lawlessness or fighting words).

    “newspaper edited speech”

    Sorry. Fact of life. Presenting the news/information requires editing else it would just be gibberish. Now spin? That’s another issue.

    “speech denied by authority figures”

    Can result in lawsuits.

    “inflammatory speech, inciteful speech, derogatory speech”

    Again, only if incitement to imminent lawlessness or fighting words.

    “anti-American speech”

    Nope. You are free to criticize America all you like. That’s protected political free speech. In case you haven’t noticed, America gets criticized around here all the time and sometimes people even go so far as being anti-American. Especially the anarchists.

    “tell it like it is speech”

    Whatever. However, if this list is an example of you “telling it like it is”, what “it is” and what you think “it is” are apparently not the same thing.

    “unpopular speech”

    Not at all. You are free to say all the unpopular things you like. You are also free to be criticized for it. If you cant’ take the heat, get out of the kitchen.

    “making people uncomfortable speech”

    Nope. You can make people uncomfortable all you like. I make people uncomfortable all the time and suffer no ill effects or punishment for it. Sometimes making them uncomfortable is my express goal because having ones prejudices and preconceptions challenged can be uncomfortable. Uncomfortable is a part of learning. Uncomfortable is a reaction. It’s the listener’s problem unless the speech is inciting imminent lawlessness or starting a fight.

    “religion speech”

    Nope. On your own dime and your own time you can say all the religious stuff you want. You just can’t use government time or money to promote your religious speech under very specific guidelines laid out by case law.

    “cause a riot speech”

    Yep. That’s limited. With good reason. Innocent people get harmed in riots.

    “spreading communism speech”

    Nope. You can spread communism all you want. It’s protected political free speech. Why you’d want to is another issue. Spreading communism is a lot like spreading phrenology.

    “lying speech”

    Covered that already: see defamation, slander, libel.

    “court ordered gag speech.”

    Courts have this power for a variety of reasons, but the main reason is to avoid jury pools being contaminated by “trial by media/trial by public opinion”.

    See? Your fears about what you can say are largely unjustified. There are a fairly narrow spectrum of prohibitions on free speech already. You don’t need anyone to “give it back to you”. Within the United States and our jurisprudence there are some exceptions to this freedom, but by in large (up to this point in history) the restrictions are both reasonable and necessary: the Miller test for obscenity, child pornography laws, laws prohibiting speech that incites imminent lawless action, restrictions on fighting words, regulation of commercial speech such as advertising, copyright and patent laws protecting authors and inventors control over their work, and the prohibition of slander and defamation. Otherwise, you are free to say what you like. For now. Maintaining that right – like all of your rights, however, requires constant vigilance.

  13. We either have free speech or we don’t. We don’t and the list is getting longer. Censored speech, profanity speech, race speech, hate speech, not politically correct speech, deformation speech, bias speech, location speech, caustic speech, newspaper edited speech, speech denied by authority figures, inflammatory speech, inciteful speech, derogatory speech,anti-American speech, tell it like it is speech, unpopular speech, making people uncomfortable speech, religion speech, cause a riot speech,spreading communism speech, lying speech, court ordered gag speech. There is no end. The only man that can give me my freedom of speech back is Ron Paul.

  14. Law D:

    “I challenge ANYONE (as no one can)…”


    Who would accept such a challenge when you pre-determine your outcome? Who would pay attention to YOU since you have?

  15. I challenge ANYONE (as no one can) to prove the lawful authority of ANY so called court system on this land, especially the so called Supreme Court.

    I await my challengers eagerly.

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