The first freedom is sometimes the last to be protected.
Cases in point: the First Amendment record of the Rehnquist II Court, 1 whose nine members have been together since the fall term of 1994. Had it not been for the 5-4 ruling in the final opinion 2 handed down last month, the justices would have consecutively rejected virtually all of the freedom-of-expression claims brought to them during the 2002-03 and the 2003-04 terms. 3 Though the current Court has an overall mixed First Amendment record, that record has become disturbingly hostile to our First Amendment liberties concerning speech, press, petition and assembly.
What, if anything, does the Rehnquist II Court’s free-speech record portend for the future? And who is leading the Court and in which philosophical direction?
Where it has been and where it is tending
Overall, in the 53 First Amendment freedom-of-expression opinions rendered by the Rehnquist II Court, free-speech claims have been sustained slightly more than half the time. That record contrasts sharply with the Court’s actions in the last two terms, during which it denied such First Amendment claims in 10 consecutive opinions. 4 In other words, it has denied free-speech claims in virtually every case it has agreed to hear since the 2002-2003 term. This number of consecutive denials of First Amendment claims is unprecedented in the Court’s modern history. At no time in the past half-century has it happened.
During the term that just ended, the Justices handed down only three freedom-of-expression opinions — cases involving a campaign-finance law (McConnell v. FEC), an indecency-zoning law (Littleton v. Z.J. Gifts), and an anti-obscenity law concerning children and the Internet (Ashcroft v. ACLU II). What is remarkable is that with the exception of the 1997-1998 term, this is the fewest number of freedom-of-expression opinions the justices have rendered in more than 40 years. In recent times, the trend has been to release five to eight, or more, First Amendment free-speech opinions.
Conclusion: The Court is rendering fewer freedom of expression opinions while denying more First Amendment claims in the cases it does agree to hear.
In yet other high-profile First Amendment cases — e.g., Nike v. Kasky (2003) (commercial speech) and Elk Grove Unified School Dist. v. Newdow (2004) (Pledge of Allegiance case) — the Court granted review only to discover later some procedural fly in the jurisdictional ointment. That may happen again in Veneman v. Livestock Marketing Association (No. 03-1164), a compelled-speech case awaiting oral argument next term. As the solicitor general hints in the government’s petition for certiorari brief, it is unclear whether there has been a full adjudication of the respondents’ statutory rights under the Beef Act. 5
Labels can be misleading
There was a time when one could gauge the “liberality” of the Court by its First Amendment voting record. The more closely that record was aligned to the rights-affirming voting patterns of William O. Douglas (1898-1980), the more liberal the justice. But time and circumstance have changed that. Labels can be misleading.
While the Rehnquist II Court is quite conservative on many Bill of Rights questions, especially those involving criminal justice, its free-speech record (apart from the past two terms) is relatively moderate. Those most inclined to sustain a free-speech claim are, in this order:
- Anthony Kennedy
- David Souter
- John Paul Stevens
- Clarence Thomas
- Ruth Bader Ginsburg
- Antonin Scalia
- Sandra Day O’Connor
- Stephen Breyer
- Chief Justice William Rehnquist.
Whether a free-speech claim is honored often turns on what kind of expression is being abridged. (Of course, the First Amendment is no respecter of ideology, a point not appreciated by most of the justices.)
Justices Scalia and Thomas — so-called “conservatives” — have upheld commercial-speech claims more than 75% of the time. Their so-called “liberal” counterparts, Justices Breyer and Ginsburg, are nowhere as sympathetic to commercial speech; they have affirmed these claims only 33% and 44% of the time, respectively.
Change the topic to sexual expression, and the First Amendment pendulum swings the other way. Here, Scalia has honored such claims only 10% of the time while Thomas has done so 50% of the time. 6 But Ginsburg has upheld sexual-expression claims 80% of the time, while Justice Stevens leads the pack with a 90% affirmance record. (Breyer is more centrist in this area.)
Yet there is consensus. For example, no one on the current Court seems to like free-speech claims raised by prisoners — they lose unanimously. (See, e.g., Overton v. Bazzetta (2003) and Shaw v. Murphy (2001).)
Kennedy and Stevens lead the Rehnquist II Court in majority opinions (11 each) involving freedom of expression, while Justices Breyer and Ginsburg (three each) are least likely to be assigned such opinions. The philosophical gulf between Justices Kennedy and Breyer is striking, with the “conservative” Kennedy being the most “liberal” and the “liberal” Breyer being nearly the most “conservative” in affirming free-speech claims. This observation is best illustrated by Kennedy’s majority opinion in Ashcroft v. ACLU II and Breyer’s dissent in that case. For Kennedy, the Child Online Protection Act was a content-based prohibition and therefore presumptively invalid. For Breyer, the law was not constitutionally invalid even under the strict-scrutiny test and even though, as he conceded, the statute’s coverage extended “slightly” beyond the legally obscene.
Amid generalized claims that Justice O’Connor is the driving force behind the Rehnquist II Court, 7 the fact is that when it comes to freedom-of-expression cases she is not a major player — Justice Kennedy is that person. Observes First Amendment lawyer Robert Corn-Revere, “Justice Kennedy is definitely a First Amendment leader on this Court. His clear statements of core free-speech principles and his consistency cut across conventional political lines. These broad opinions prevent the Court’s overall record from being too negative in the First Amendment area, despite narrow denials in cases during the past two terms.”
In the course of almost a decade, the Rehnquist II Court has invoked the First Amendment (sans the religion clauses) to set aside 13 federal laws, eight state laws, and four local laws. Notably, in the vast majority of instances wherein the Court struck down a federal law on freedom-of-expression grounds, it affirmed the judgment of the lower court, which suggests that the law invalidated was constitutionally suspect. The implication is that there is probably not much judicial activism here.
The Court’s “activism,” if that is the word, is perhaps better discerned in which cases it decides to hear and not hear. For example, the Rehnquist II Court is most likely to review election and/or campaign-finance cases (it has had 11) followed by commercial-speech cases (nine), and least likely to review defamation cases. Even though numerous defamation petitions have been presented to the Rehnquist II Court over the years, it has not heard one such case since 1991. (See Masson v. New Yorker Magazine, Inc., 1991.) In the first category of cases, the Court actively shapes the law, while in the latter category the status quo is determined by lower courts.
There are no grand free-speech philosophers on the Rehnquist II Court, no Oliver Wendell Holmes or Hugo Black types. In time, Justice Kennedy seems quite likely to develop a far-reaching First Amendment jurisprudence. Meanwhile, pragmatism combined with a measure of partisanship govern, though Justices Kennedy and Souter often cross ideological divides.
If the Rehnquist II Court continues in the anti-free-speech direction it has traveled in the last two terms, its First Amendment jurisprudence may begin to track the rights-denying character of its Fourth Amendment jurisprudence. But the past two terms may well be aberrational; the Court’s ruling in Ashcroft v. ACLU II may better signal the future of things to come.
Meanwhile, the great cause of the First Amendment is aptly summed up in the words of Justice Kennedy, who four years ago put it thoughtfully: “The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”8
The First Amendment can retain its vitality if the nine high priests of the Constitution will abide by that sound Madisonian gospel.
1 Though William Rehnquist has been Chief Justice since 1986, I use the reference “Rehnquist II Court” to indicate that period of time after August of 1994 when Justice Stephen Breyer took his seat on the Court. The membership of the Court has not changed since that time.
2 Ashcroft v. ACLU II (2004).
3 To be precise, the Court denied all free-speech claims except those of one of the three rights claimants in Virginia v. Black (2003). Likewise, in McConnell v. FEC (2003), the Court, while upholding the lion’s share of the provisions of the Bipartisan Campaign Reform Act of 2002, did nonetheless strike down one provision that barred minors 17 and younger from making political contributions.
4 The freedom-of-expression cases for the 2003-2004 term denying a First Amendment claim: City of Littleton v. Z.J. Gifts (2004) and McConnell v. Federal Election Commission (2003). Such cases for the 2002-2003 term: Virginia v. Hicks (2003), Madigan v. Telemarketing Associates, Inc. (2003), United States v. American Library Association, Inc. (2003), Overton v. Bazzetta (2003), Federal Election Commission v. Beaumont (2003), Eldred v. Ashcroft (2003), Nike v. Kasky (2003) (jurisdiction withdrawn), and Virginia v. Black (2003).
5 7 U.S.C. 2904(1) and 2906(b).
6 Justice Thomas was the swing vote in two important sexual-expression cases, Ashcroft v. ACLU II (2004) and United States v. Playboy Entertainment Group (2000).
7 See, e.g., Charles Lane, “Courting O’Connor,” Washington Post Magazine, July 4, 2004, sect. W, p. 10.
8 United States v. Playboy Entertainment Group.