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First Amendment is at a crossroads in Supreme Court

Posted at 6:38 AM, Dec 15, 2017

As the Supreme Court digs into a momentous term, the justices have signaled an unusual interest in the First Amendment by agreeing to hear seven different cases exploring the contours of free speech.

Just last week, justices heard a much-anticipated challenge from a Colorado baker who refused to make a cake to honor the marriage of a same-sex couple out of his religious objections. The baker argues, in part, that his cakes are his artistic expression and the government can't compel his speech.

First Amendment principles are on the docket in cases concerning the free-speech implications of an abortion regulation in California, so called "fair share" fees at public sector unions, a Minnesota law that bans voters from wearing ideological clothing at polling places and a retaliatory arrest claim out of Florida. The will also hear two different cases touching on the free speech implications surrounding political gerrymandering.



All eyes will be on Justice Anthony Kennedy. The possibility of Kennedy resigning hangs over the entire court term, but he in particular has been a fierce supporter of free speech rights and is sometimes the swing vote between the four conservatives and four liberals on the court. It is possible he would want to make a mark on the future of the First Amendment before he leaves.

The court's interest also comes as President Donald Trump has triggered a broader debate on the implications of free speech. Trump has been engaged in a battle of epic proportions with the press, complaining of "fake news" and unfair coverage of him and the White House. "With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!" Trump tweeted recently.

"Candidate and now President Trump has made a number of statements about the reach of the First Amendment -- at times using it both as a shield and a sword -- but by the end of this term the Supreme Court will have the final word the contours of the First Amendment at least in a number of important areas," said Jessica A. Levinson, who teaches constitutional law at the Loyola Law School in Los Angeles.

The First Amendment reads that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Uniting the cases is a desire on the part of justices to more clearly define the outlines of free speech. "All the cases fall broadly under the First Amendment, and they touch on different areas," Levinson said. "But what unites them is the desire on the part of at least four justices to clearly define the contours of free speech and free expression in our society."

Role of Anthony Kennedy

One reason for the sheer number of cases may have less to do with the individual issues and more to do with the interests and jurisprudence of Kennedy, who plays a critical role on the court and often casts the deciding vote or crafts the final language of a key opinion, said Frederick Schauer, an expert at the University of Virginia School of Law.

"Given that Justice Kennedy has longstanding sympathy for free speech claims, and that other justices are especially interested in free speech issues, the good lawyer will try to frame (or bend) the facts and law of his or her case to make it a First Amendment case," Schauer said in an interview.

Indeed, lawyers for Masterpiece Cakeshop baker Jack Phillips, who refused to make a cake to honor the wedding of a same sex couple because of his religious objections, brought both free exercise and free speech claims to the high court. During oral arguments, they put more emphasis on their free speech claim.

"The First Amendment prohibits the government from forcing people to express messages that violate religious convictions," said Phillips' lawyer Kristen K. Waggoner. She said that Colorado ordered her client to "sketch, sculpt, and hand paint cakes that celebrate a view of marriage in violation of his religious convictions."

Some court watchers suspect that Kennedy, an appointee of President Ronald Reagan, may step down at the end of the term next summer, and the cases could give him one last chance to make a mark on how the First Amendment is interpreted.

Earlier this year, Kennedy spoke passionately about free speech when he wrote to strike down a North Carolina law that made it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages."

With sweeping language, Kennedy wrote "to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights."

Kennedy said the law had gone too far restricting cites like Facebook, Twitter and Linkedin. "It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals -- and in some instances especially convicted criminals -- might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives."

He noted that the case was one of the first to address the relationship between the First Amendment and the modern internet.

"By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge," he wrote.

The opinion was 8-0 but Justice Samuel Alito, joined by the conservatives on the bench (Justice Neil Gorsuch did not participate) wrote separately to distinguish themselves from some of Kennedy's language, saying it went too far.

Alito agreed the law was "staggering" in its reach and violated the First Amendment, but he worried about what he called the majority opinion's "unnecessary rhetoric." Kennedy's language, Alito wrote, "is bound to be interpreted by some to mean that the states are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers."

California Abortion Notices

Alliance Defending Freedom, the conservative organization that represents Phillips, is also behind an abortion-related case that the justices will hear next year. The National Institute of Family and Life Advocates, a crisis pregnancy center, opposes a California law that requires them to disseminate information about the availability of state run programs that provide abortion.

California "now forces licensed centers to communicate the government's message about state-funded abortions to everyone who walks in the door," the group argued in court papers. The state, they said, does not impose such "compelled statements" to health providers that provide or promote abortion or abortificacients.

"The only ones forced by the state to speak these government messages are those who oppose abortion," they wrote.

"Both Masterpiece and the NIFLA cases involve government coercion of private speech, that's the theme that runs through these cases," said David Cortman, another lawyer at the Alliance Defending Freedom.

Lawyers for California say the law was passed in part  because some 700,000 California women become pregnant each year and over half of the pregnancies are unintended. The law, they argue, addresses problems including the fact that many women who cannot afford medical care are unaware that "public programs are available to them."

Union Fees and political support

The justices will also hear a case that concerns whether non-members of public sector unions can be required to pay so called "fair share" fees germane to collective bargaining.

Court precedent holds that while a non-union member does not have to pay fees that go to political activities, that exemption does not include fees for issues such as employment conditions and employee grievances.

The case is brought by Mark Janus, an Illinois public sector employee who argues that the "fair share" fees violate his First Amendment rights.

"It is a bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support"Janus' lawyers argue.

Unions are carefully watching this case, fearful that the conservative majority of the court is set to overturn precedent and rule in favor of Janus.

Partisan gerrymandering

Two of the biggest cases of the term concern the issue of partisan gerrymandering and how far politicians can go when they manipulate district maps for partisan advantage. The court has already heard one challenge brought by Democratic voters in Wisconsin who charged that after the last census Republican legislators drew maps unconstitutionally to benefit Republicans.

Lawyers for the challengers argued in part that the new maps contravene the First Amendment by "penalizing these voters because of their political beliefs."

"That the government may not punish or suppress speech based on disapproval of the ideas or the perspectives the speech conveys is a fundamental principle of the First Amendment," Paul M. Smith, a lawyer for the Democratic voters, argued in court briefs.

While Smith also made claims concerning equal protection, it was the free speech aspect that seemed to attract Kennedy at oral arguments.

"Suppose the Court," he said, "decided that this is a First Amendment issue."

In somewhat of a surprise, the court announced last week that it would hear another partisan gerrymander case out of Maryland. It's still unclear exactly why justices decided to add the case to the docket when it is already hearing the Wisconsin case.

T-shirts and retaliatory speech

The court will also hear a case about political apparel at the polling place.

Andy Cilek, a Minnesota voter and executive director of the Minnesota Voters Alliance, was temporarily blocked under Minnesota law from voting because he was wearing a T-shirt that stated "Don't Tread on Me" at a polling place.

"Although this court has permitted campaign-free zones that prohibit campaign materials and active solicitation, it has never endorsed a ban on all political speech," lawyers for the conservative Pacific Legal Foundation, who are representing Cilek, argued in court papers.

Lawyers for the state had urged the Supreme Court to stay out of the case and leave in place a lower court opinion that went against Cilek.

"The court of appeals' legal conclusion that the interior of a polling place is a non-public forum in which speech restrictions are constitutional as long as they are reasonable and viewpoint neutral is the same conclusion reached by every court that has analyzed the issue," wrote Daniel P. Rogan of the Hennepin County Attorney's office.

And the justices will hear a free speech case about retaliation sometime next year.

Fane Lozman is a critic of redevelopment efforts in Riviera Beach, Florida. During the public comment period at a City Council meeting in 2006, a presiding officer ordered his arrest. After the state's attorney declined to prosecute, Lozman brought suit arguing in part that his free speech rights were violated when the city retaliated against him for having criticized the government.

Christine Farley, from American University Washington College of Law, is anxious to see what will change by the end of the term. She says that although the court, in general, is seen as having a pro-speech bent, that is not always the case.

The court "protected disparaging trademarks, but not offensive license plates. It protected false claims to military medals, but not government whistleblowers' claims," she said.

Levinson agreed it will be an interesting year.

"For First Amendment scholars, this is like drinking water from a fire hydrant," she said.