Now the system has undergone a startling youthquake that has reduced the average age of a justice by a decade. At oral argument, the stars of the old generation--calm, deliberative Anthony Kennedy and irascible, preening Antonin Scalia--look and sound like old newsreel footage. This Court belongs to the new kids on the block.
Bill Rehnquist served on the Court for more than 30 years, and was chief for nearly 20. By about 2030, commentators will know which areas of law in 2011 were about to change and which parts remained more or less stable. But it begins to seem as if First Amendment speech jurisprudence will be one of the latter. The new Court's recent cases follow the precedents and principles that have governed this area for more than 50 years. Those precedents and principles have been sharply questioned by thinkers on and off the Court; the prospect of their survival is remarkable.
I make this rash prediction on the basis of a number of key cases from the past two terms. The most recent, of course, is Snyder v. Phelps, in which the Court held that a Maryland jury could not award multimillion-dollar damages against the repellent members of the Westboro Baptist Church for their homophobic picketing at the funeral of an American soldier killed in Iraq (PDF). Chief Justice Roberts wrote the opinion reaching this unpopular result; what's remarkable about it is how unremarkable it is by historic standards. Indeed, it reads like an A answer in any law-school First Amendment seminar since 1980 or so, breaking no new ground and questioning none of the Court's bedrock First Amendment principles. "Given that Westboro's speech was at a public place on a matter of public concern, that speech is entitled to 'special protection' under the First Amendment," Roberts wrote. "Such speech cannot be restricted simply because it is upsetting or arouses contempt."
This principle--that speech is protected despite (or perhaps because of) general agreement that it is disgusting--was the centerpiece of the Warren Court's vision of the First Amendment. It's not an inevitable part of the analysis; over the years, a number of justices have wanted the Court instead to begin a complex weighing of the "value" of speech, with less protection for the worthless. But like one of Richard Dawkins's powerful memes, protection for vile speech has jumped from the Warren to the Burger to the Rehnquist Courts, and now has found a home in the brain of John Roberts himself.
Not only did Roberts write Snyder; he also gamely wrote another orthodox First Amendment opinion in United States v. Stevens, which struck down a federal statute making it a crime to sell videos of animal cruelty (PDF). Roberts used one of the Warren Court's most powerful free-speech doctrines, the concept of "substantial overbreadth," which permits free-speech challengers to succeed even if a properly drawn statute might constitutionally ban their specific speech. That doctrine has been criticized by conservatives as too speech-protective; but the new Court showed little interest in limiting its sweep.