Washington
Update
First Amendment Lawyers Association
Minneapolis, MN, July 2011
Robert Corn-Revere
Fun Facts From the Supreme Court Term

Opinions – 80

9-0 (48%); 8-1 (13%); 7-2 (15%); 6-3 (5%); 5-4
(20%)

72% of cases accepted for cert. are reversed

33% of cases (26) were from the 9th Circuit; 79%
reversed

Kennedy in the majority (94%); in 5-4 cases (88%)

Snyder v. Phelps

Brown v. Entertainment Merchants Association

Sorrell v. IMS Health Inc.
 Arizona Free Enterprise Club’s Freedom Club PAC v.
Bennett
Other Cases

Borough of Duryea v. Guarnieri (9-0)
(Court holds retaliation against public
employee does not violate the Petition
Clause unless it violates a matter of
public concern)

Nevada Commission on Ethics v.
Carrigan (9-0) (Court upholds Nevada
Ethics in Government Law requiring
recusal for conflicts of interest)
Snyder v. Phelps
Chief Justice John Roberts

8-1 decision, affirming
Fourth Circuit.

Disssent by Justice Alito.

Applied Hustler Magazine
v. Falwell to matters of
public concern.
Key principles affirmed

The message of the Westboro Baptist Church “may fall short of
refined social or political commentary,” but such expression in a
public forum is entitled to “special protection” under the First
Amendment.

Offensive speech “cannot be restricted simply because it is upsetting
or arouses contempt.”

“Speech is powerful. It can stir people to action, move them to tears
of both joy and sorrow, and -- as it did here -- inflict great pain. On
the facts before us, we cannot react to that pain by punishing the
speaker. As a Nation we have chosen a different course -- to protect
even hurtful speech on public issues to ensure that we do not stifle
public debate.”
Schwarzenegger v. EMA
Brown v. Electronic Merchants Assn.

7-2 decision, opinion by
Justice Scalia.

Concurring opinion by
Justice Alito, joined by
the Chief Justice.

Separate dissents by
Justices Breyer and
Thomas.
Key principles affirmed

The state cannot create new categories of unprotected speech. U.S.
v. Stevens is controlling.

“Esthetic and moral judgments about art and literature . . . are for the
individual to make, not for the Government to decree, even with the
mandate or approval of a majority.”

“Whatever the challenges of applying the Constitution to everadvancing technology, ‘the basic principles of freedom of speech
and the press, like the First Amendment’s command, do not vary’
when a new and different medium for communication appears.”

Government authority to protect children from harm
“does not include a free-floating power to restrict the ideas to which
children may be exposed.”
Wait, there’s more . . .

“Crudely violent video games, tawdry TV shows, and cheap novels and
magazines are no less forms of speech than The Divine Comedy, and
restrictions upon them must survive strict scrutiny.”

The state must specifically identify an actual problem in need of solving,
and the curtailment of free speech must be actually necessary to the
solution.

The government bears the risk of uncertainty in satisfying the burden of
proof, and social science studies based on correlation are insufficient.

Just because there is a problem, it doesn’t empower the state to regulate
speech.

State cannot show it is serving a compelling interest when voluntary
measures can address the problem, and it is not clear that parents share the
state’s concerns about the remainder.
Other opinions

Alito and Roberts:
Developing technology may have
important societal implications. But the law’s definition of
violent video games is impermissibly vague.

Thomas: The First Amendment does not include a right to
communicate to minors without going through parents or
guardians.

Breyer: Ginsberg v. New York controls this case. Interactive
games involve action as much as speech. Social science
proves the harm of video games -- asserts a causal link.
Thomas discovers a new unprotected category
Justice Thomas

The founding generation believed
parents had complete authority
over their minor children and
expected parents to direct their
development.

“The concept of total control over
children’s lives extended into the
schools.”

This is a historically unprotected
category of speech that has not
been previosly recognized by the
Court.
Breyer brings back balancing . . .
Justice Breyer, dissenting
“I would evaluate the degree to
which the statute injures speechrelated interests, the nature of
the
potentially-justifying
‘compelling
interests,’
the
degree to which the statute
furthers that interest, the nature
and effectiveness of possible
alternatives, and . . . whether,
overall, ‘the statute works
speech-related harm . . . out of
proportion to the benefits that
the statute seeks to provide.’”
Sorrell v. IMS Health Inc.

6-3 decision, opinion by
Justice Kennedy.

Dissent by Justice
Breyer, joined by
Justices Ginsburg and
Kagan.
Justice Anthony Kennedy
Key principles affirmed

State’s acknowledged objective was to correct what it called an
“imbalance” in the marketplace of ideas. Court held that the government
cannot restrict commercial speech on the theory it is “too persuasive.”

The “fear that people would make bad decisions if given truthful
information” cannot justify content-based burdens on speech.

Data is protected. Facts, after all, “are the beginning point for much of the
speech that is most essential to advance human knowledge and to conduct
human affairs.”

Vermont’s restrictions on speech are subject to “heightened scrutiny” and it
is unnecessary to decide whether to apply the traditional test for regulating
commercial speech.
No thumb on the scale . . .
Justice Anthony Kennedy
“In an attempt to reverse a disfavored trend
in public opinion, a State could not ban
campaigning with slogans, picketing with
signs, or marching during the daytime.
Likewise, the State may not seek to remove
a popular but disfavored product from the
marketplace by prohibiting truthful,
nonmisleading advertisements that contain
impressive endorsements or catchy jingles.
That the State finds expression too
persuasive does not permit it to quiet the
speech or to burden its messengers.”
Breyer: balancing again
“In this case I would ask
whether
Vermont’s
regulatory
provisions
work harm to First
Amendment
interests
that is disproportionate
to their furtherance of
legitimate
regulatory
objectives.”
Justice Breyer dissenting,
joined by Justices
Ginsburg and Kagan
Arizona Free Enterprise Club v. Bennett

Court struck down Arizona public
financing scheme that granted
extra funding if opponent’s
spending and/or independent
expenditures exceeded a specified
amount.

Opinion by the Chief Justice,
joined by Justices Scalia, Alito,
Thomas and Kennedy.

Dissent by Justice Kagan, joined
by Justices Ginsburg, Breyer, and
Sotomayor.
Chief Justice Roberts
Key principles affirmed

Followed Davis v. FEC (2008), which struck down
“Millionaire’s Amendment.”

Arizona law is even more problematic: Direct release of
public money, even in response to independent expenditures.

Effort by government to “balance” speech is unconstitutional
under Tornillo v. Miami Herald (1974).

“It is never easy to prove a negative. . . . [W]e do not need
empirical evidence to determine that the law at issue is
burdensome.”
A divided Court on campaign reform

Speech subsidies are
distinguishable from
speech restrictions.
Subsidies do not restrict
speech.

Goal of the law is fighting
corruption, not leveling
the playing field.

Law only provided “more
speech.”
Justice Kagan, dissenting
Cert. Granted: FCC v. Fox Television
Stations and ABC, Inc. v. FCC
FCC’s Proposed Questions
1. Whether the Court of Appeals erred in invalidating a finding
by the (FCC) that a broadcast including expletives was
indecent within the meaning of statutory and regulatory
prohibitions on indecent broadcasts, on the ground that the
FCC’s context-based approach to determining indecency is
unconstitutionally vague in its entirety.
2. Whether the Court of Appeals erred in invalidating a finding
by the FCC that a broadcast including nudity was indecent
within the meaning of statutory and regulatory prohibitions
on indecent broadcasts, on the ground that the FCC’s contextbased
approach
to
determining
indecency
is
unconstitutionally vague in its entirety.
Question consolidated
Whether the Federal Communications
Commission’s
current
indecencyenforcement regime violates the First or
Fifth Amendment to the United States
Constitution.
CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008) cert.
granted, vacated, and remanded, 129 S. Ct. 2176 (2009).