New Court, Old Doctrine: 'The Thought That We Loathe' Survives

The new Supreme Court's speech decisions come with a familiar ring

Happy families may be all alike, but Supreme Courts are not families.  The famous description of a Court as "nine scorpions in a bottle," I think, overstates the craziness of a life-tenured multi-member appellate court; but every Court is built around nine independent, powerful personalities, each of whom arrives on the bench used to being the smartest person in any given room.  These egos circle chaotically until they fall into complicated, unstable mutual orbits. The "three-body problem" is a classic example of how complex gravity and motion can be; Court watches must use inadequate data to approximate a "nine-body problem"--an entire solar system--as they try to understand a new Court.

And this is a very new Court.  Between 2006 and 2010, the Court gained four new members, including a new chief justice.  The last such comparable upheaval was in the 1980s, before I went to law school. I became a professor studying the dynamic of that Court--headed by William Rehnquist, with Sandra Day O'Connor in the swing seat. In many ways, it was as stable as a sitcom in reruns. Indeed, after the appointment of Stephen Breyer in 1994, the Court began to resemble the Brezhnev-era politburo: no change at all for more than a decade, practically a record in Supreme Court history.

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.

Both these opinions were lopsided wins for free speech--8-1 decisions, with only Justice Alito dissenting.  Several commentators have pointed out that Alito has emerged as the single justice with the most concern for those harmed by distasteful speech and public criticism.  George Washington University Professor Jeffery Rosen last week christened him the Court's "privacy cop."  But this cop walks a pretty lonely beat.  Alito's anguished dissents in Stevens and Snyder, in fact, remind me of lonely First Amendment dissents by then-Justice Rehnquist, who was very much a free-speech skeptic when he came to the Court.  By the end of his tenure, Rehnquist had largely converted, and wrote the Court's classic opinion in Hustler Magazine v. Falwell, protecting the most worthless of speech:  a sleazeball pornographer's proudly false satirical depiction of a TV preacher as a hypocritical, incestuous drunk.

The survival of the Warren-Burger Court's First Amendment doctrine is striking because many of the concerns that gave rise to its seminal cases have changed dramatically.  Precedents like New York Times v. Sullivan, which limited libel actions against speech of public importance, Nebraska Press Association v. Stewart, which struck down court-ordered gags on media speech,  and Miller v. California, which restricted state obscenity statutes, arose out of civil-liberties and culture wars that are definitively over today.  The Warren Court, and its First Amendment tactician, William J. Brennan, saw itself as shepherding the country out of a period when local majorities maintained control by aggressively shutting down minority speech.  If "most of us" found speech distasteful, that was in itself reason to protect it. "One man's vulgarity is another man's lyric," Justice John Marshall Harlan in a case establishing every American's right to go to the courthouse wearing a jacket that says FUCK THE DRAFT.
Public speech today is (to quote Brennan in Times v. Sullivan) "uninhibited, robust, and wide-open" to a historically astounding degree.  Sam Alito surely is not the only one feeling tempted to cut back just a bit on all this toleration of what Justice Oliver Wendell Holmes Jr. called "opinions that we loathe and believe to be fraught with death." (Justice Steven Breyer plainly wishes we could find a way to make everyone nicer, and often says so from the bench.)

But the free-speech jurisprudence survives for many reasons: because it is popular, both with the public at large and with the powerful interests that live by free communication of ideas and images; because the decisions at its base are well-crafted and easy to apply; and because robust protection of free speech provides a benefit, at one time or another, to all sides of the political and economic spectrum. Certainly, the existing free-speech doctrine isn't all great news for progressives. Many people may chafe at a regime that protects cigarette advertising aimed at children almost as fully as it protects independent press reporting; Citizens United v. Federal Election Commission uses old fashioned Brennan-style free-speech rhetoric to gut any attempt to limit concentrated wealth in politics (PDF). And not long ago I was at a panel where a prominent union lawyer ridiculed the First Amendment as "the most overrated Amendment" because of the way it protects employer anti-union campaigns in the workplace.   
I doubt this Court will write a record of great concern for unions, or for the poor, or for the unpopular, in general. But if it will continue to protect their speech, that is something. And in the wake of the brilliant protest campaign by labor advocates in Wisconsin against Republican union-busting, even a cynical labor lawyer might be tempted to rate the First Amendment more highly.