Recent Supreme Court Rulings Often Favor Companies on Free Speech, Panelists Say
The Supreme Court has ruled different ways in First Amendment cases, depending partly on what issue is at stake, so court observers said at an FCBA panel on Thursday that they can’t generalize across all cases. In the five years under Chief Justice John Roberts, the court has accepted 19 free-speech cases that don’t have to do with religion, said First Amendment lawyer Robert Corn-Revere of Davis Wright. Of the 14 cases where the court has ruled, it decided in favor of free speech in six of them and eight times against it, he said. Roberts’ tenure hasn’t been “entirely promising,” but recent cases give free-speech proponents more to cheer about, said Corn-Revere, who moderated a panel on the First Amendment and the high court.
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"This is a very good court, unless you are a student, a prisoner or a public employee,” said Executive Director Gene Policinski of the Freedom Forum’s First Amendment Center. In a recent ruling upholding the right of the Westboro Baptist Church to protest funerals of service members killed in action, “there’s even an acknowledgment that the actual contribution to an actual political debate may be negligible” but the speech is protected from regulation, he said. “You see a movement with the court here [having] really established a precedent, of the most repugnant speech of our time” being protected, Policinski said. Referencing a pending case involving California’s regulation of violent videogames, “it’s a little harder to read the court on this one,” he said, citing oral argument.
The Citizens United ruling on campaign ads “was a clear win for the First Amendment,” said lawyer Kevin Goldberg of Fletcher Heald. Helgi Walker of Wiley Rein, who successfully argued the Comcast net neutrality case for the company, agreed. She and Goldberg said unions benefit, too, from the ruling, despite the view by some that it primarily benefits corporations. Goldberg said the Supreme Court does seem “to love corporations, and hate students.” That’s evidenced by the 2007 ruling in favor of a school and against a student who contended he had a right to show a banner with the slogan “bong hits for Jesus,” Goldberg said.
The court signaled it may be inclined to take up the recent appeal by the U.S. of two indecency rulings from the 2nd U.S. Circuit Court of Appeals in New York, which found against FCC policy, suggested Jacob Lewis, the agency’s associate general counsel. “The court granted cert on the administrative appeal” in Fox, where the high court earlier upheld the regulator on indecency, he said. “And it contemplated constitutional issues would be raised by the 2nd Circuit.” Walker predicted the court, if it took up the current indecency appeals, will find against the FCC, though the ruling could “really splinter the court, in surprising ways.”