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MIXED SIGNALS: THE ROBERTS COURT AND
FREE SPEECH IN THE 2009 TERM
Patricia Millett*
Kevin R. Amer**
Jonathan H. Eisenman***
Josh N. Friedman****
I.
INTRODUCTION ................................................................... 1
II. THE 2009 OCTOBER TERM DECISIONS ........................... 6
A. Citizens United v. Federal Election Commission ............ 6
B. United States v. Stevens ................................................. 17
C. Holder v. Humanitarian Law Project ............................ 20
D. Christian Legal Society v. Martinez .............................. 23
E. Doe v. Reed ...................................................................... 27
F. Milavetz, Gallop & Milavetz, P.A. v. United States ...... 29
G. Summary ........................................................................ 30
III. THE 2010 TERM CASES ..................................................... 31
A. Snyder v. Phelps ............................................................. 31
B. Schwarzenegger v. Entertainment Merchants
Association ...................................................................... 33
IV. PENDING PETITIONS ........................................................ 39
V.
CONCLUSION...................................................................... 41
I.
INTRODUCTION
In the ebb and flow of Supreme Court decision making, it is
common for trends to emerge—areas in which a concentration of
decisions trigger significant jurisprudential development over a
Term or series of Terms.
Recent trends have included
developments in the law of federalism,1 criminal sentencing,2 and
*Ms. Millett is a partner at Akin Gump Strauss Hauer & Feld LLP and
co-heads the Firm’s Supreme Court Practice. She has argued twenty-eight
cases before the United States Supreme Court both in private practice,
including United States v. Stevens in the 2009 Term, and previously, as an
Assistant to the Solicitor General in the Office of the Solicitor General at the
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United States Department of Justice. Ms. Millett received her J.D. from
Harvard Law School and her B.A. from the University of Illinois at UrbanaChampaign.
**Mr. Amer is a counsel in the Supreme Court and Appellate practice
group at Akin Gump Strauss Hauer & Feld LLP. He received his J.D. from
Yale Law School and his A.B. from Harvard University.
***Mr. Eisenman is an associate at Akin Gump Strauss Hauer & Feld
LLP. He received his J.D. from the University of Texas School of Law and his
A.B. from Dartmouth College.
****Mr. Friedman is currently a law clerk to the Honorable Beverly
Martin of the United States Court of Appeals for the Eleventh Circuit. The
views expressed herein are his own personal views stated in his personal
capacity. Previously, he was an associate at Akin Gump Strauss Hauer & Feld
LLP. He received his J.D. from Stanford Law School and his B.A. from Duke
University.
1. See, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001)
(holding that the Eleventh Amendment prohibits individuals from suing states
for money damages for failure to comply with Title I of the Americans with
Disabilities Act); United States v. Morrison, 529 U.S. 598, 617–19, 627 (2000)
(holding unconstitutional as beyond Congress’s Commerce Clause or Fourteenth
Amendment powers a portion of the Violence Against Women Act providing a
federal civil remedy for victims of gender-motivated violence); Coll. Sav. Bank v.
Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 691 (1999)
(holding that state sovereign immunity is not effectively abrogated by the
Trademark Remedy Clarification Act); Alden v. Maine, 527 U.S. 706, 754 (1999)
(expanding state immunity for federal causes of action brought in the state’s
own courts); City of Boerne v. Flores, 521 U.S. 507, 519–20 (1997) (sharply
limiting Congress’s ability to abrogate state sovereign immunity pursuant to
Section Five of the Fourteenth Amendment); Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 47 (1996) (removing Congress’s authority to abrogate state
sovereign immunity under its Commerce Clause authority); United States v.
Lopez, 514 U.S. 549, 551 (1995) (holding the Gun-Free School Zones Act of 1990
unconstitutional as in excess of Congress’s Commerce Clause authority). But
see, e.g., Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 379 (2006) (Congress has
the constitutional authority to treat states as it would any other creditors in
creating proceedings for recovering preferential transfers); Tennessee v. Lane,
541 U.S. 509, 533–34 (2004) (finding that Title II of the Americans with
Disabilities Act is a constitutional waiver of state sovereign immunity); Nev.
Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 734–35 (2003) (holding that
provisions of the Family and Medical Leave Act that create a private right of
action are a valid waiver of state sovereign immunity under Section Five of the
Fourteenth Amendment).
2. See, e.g., Gall v. United States, 552 U.S. 38, 41 (2007) (discussing the
standards for reviewing sentences and guidelines departures under the postBooker discretionary guidelines); Rita v. United States, 551 U.S. 338, 364–65
(2007) (holding that courts can presume that a sentence within the federal
guidelines range is reasonable); Claiborne v. United States, 439 F.3d 479 (8th
Cir. 2006), cert. granted, 549 U.S. 1016 (2006), vacated as moot, 551 U.S. 87
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Roberts Court and Free Speech
intellectual property.3 The 2009 Supreme Court Term was
remarkable for the large number of decisions issued by the Court
addressing the First Amendment’s protection for speech. While
previous Terms of the Court under Chief Justice Roberts have
seen a handful of speech decisions,4 the 2009 Term saw the Court
(2007) (per curiam) (same); United States v. Booker, 543 U.S. 220, 226–27, 244
(2005) (holding that increasing a defendant’s federal law sentence based on
findings made by a judge and by a preponderance of the evidence, under the
federal sentencing guidelines, violates the Sixth Amendment and making the
application of federal guidelines sentences discretionary); Blakely v.
Washington, 542 U.S. 296, 305 (2004) (holding that the Sixth Amendment
prohibits a judge from increasing a sentence, even within state guidelines for
the crime for which a defendant is convicted, if the increase is based on facts not
found by a jury); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (principally
holding that, “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt”).
3. See, e.g., Bilski v. Kappos, 561 U.S. ___, ___, 130 S. Ct. 3218, 3227
(2010) (observing that the “machine-or-transformation test is not the sole test
for deciding whether an invention is a patent-eligible ‘process’”); KSR Int’l Co. v.
Teleflex, Inc., 550 U.S. 398, 415 (2007) (rejecting, at least as rigidly applied, the
Federal Circuit’s “teaching, suggestion, or motivation” test for determining
when the subject matter to be patented is obvious); eBay Inc. v. MercExchange,
LLC, 547 U.S. 388, 394 (2006) (affirming that the standard criteria for
injunctions apply in patent disputes).
4. In October Term 2005, the Court decided four speech cases: Beard v.
Banks, 548 U.S. 521, 524–25 (2006) (whether denying certain prisoners access
to all newspapers, magazines, and photographs violates their First Amendment
rights); Randall v. Sorrell, 548 U.S. 230, 236–37 (2006) (whether a Vermont law
limiting campaign contributions and expenditures violates the First
Amendment); Garcetti v. Ceballos, 547 U.S. 410, 413 (2006) (whether public
employees may be disciplined, consistent with the First Amendment, for speech
made pursuant to their official duties); and Rumsfeld v. Forum for Academic &
Institutional Rights, Inc., 547 U.S. 47, 51 (2006) (whether the Solomon
Amendment, which revokes certain federal funding from institutions of higher
education that deny access to military recruiters, violates the schools’ freedoms
of speech and association).
In October Term 2006, the Court decided four speech cases: Morse v.
Frederick, 551 U.S. 393, 396–97 (2007) (whether suspending a student for
carrying a sign reasonably interpreted to advocate drug use violates his First
Amendment rights); FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 457 (2007)
(whether the Bipartisan Campaign Reform Act’s prohibition on electioneering
ads violates the First Amendment as applied to certain broadcast
advertisements); Tenn. Secondary Sch. Athletic Ass’n v. Brentwood Acad., 551
U.S. 291, 294 (2007) (“whether the enforcement of a rule prohibiting high school
coaches from recruiting middle school athletes violates the First Amendment”);
and Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 180 (2007) (whether a law
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decide a large volume of high-profile and jurisprudentially farreaching free speech cases: six in total, which reflected nearly
seven percent of the Court’s plenary docket.5 And it appears as
though the Court is not done yet because, as of this writing, at
least two more freedom of speech cases are on the docket for the
October Term 2010,6 and two more speech cases challenging
violates the First Amendment by requiring unions to get the affirmative
consent of nonmember fee payers before using their fees for election related
purposes).
In October Term 2007, the Court again decided four speech cases:
Davis v. FEC, 554 U.S. ___, ___, 128 S. Ct. 2759, 2766 (2008) (whether the socalled “Millionaire’s Amendment” to the Bipartisan Campaign Reform Act
violates the First Amendment by drastically altering the campaign expenditure
limits of candidates facing heavy-spending, self-financing opponents); United
States v. Williams, 553 U.S. 285, 288 (2008) (whether a federal criminal law
prohibiting the solicitation of child pornography is overbroad in violation of the
First Amendment); Wash. State Grange v. Wash. State Republican Party, 552
U.S. 442, 444 (2008) (whether Washington’s primary voting system violates the
First Amendment associational rights of the state’s parties); and N.Y. State Bd.
of Elections v. Lopez Torres, 552 U.S. 196, 198 (2008) (whether New York’s
method of nominating candidates for judicial positions violates the First
Amendment rights of prospective party candidates).
In October Term 2008, the Court decided only three speech cases:
Pleasant Grove City v. Summum, 555 U.S. ___, ___, 129 S. Ct. 1125, 1129 (2009)
(whether a municipality can be required to place a permanent monument in a
public park as an expressive act that must be allowed in a public forum); Ysursa
v. Pocatello Educ. Ass’n, 555 U.S. ___, ___, 129 S. Ct. 1093, 1096 (2009)
(whether the First Amendment requires a state government to provide public
employees with a mechanism for automatic payroll deductions to donate to their
unions’ political action committees); and Locke v. Karass, 555 U.S. ___, ___, 129
S. Ct. 798, 801–02 (2009) (whether, consistent with the First Amendment, a
local union can give a portion of non-members’ service fees to the national
union, which then gives money to other local unions to pay litigation expenses).
5. Citizens United v. FEC, 558 U.S. ___, 130 S. Ct. 876 (2010); Milavetz,
Gallop & Milavetz, P.A. v. United States, 559 U.S. ___, 130 S. Ct. 1324 (2010);
United States v. Stevens, 559 U.S. ___, 130 S. Ct. 1577 (2010); Holder v.
Humanitarian Law Project, 561 U.S. ___, 130 S. Ct. 2705 (2010); Doe v. Reed,
561 U.S. ___, 130 S. Ct. 2811 (2010); and Christian Legal Soc’y Chapter of the
Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. ___, 130 S. Ct.
2971 (2010). Technically, Citizens United was reargued at the tail end of the
2008 Term, but we include it because the decision issued during the 2009 Term.
6. Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 78
U.S.L.W. 3521 (U.S. Mar. 8, 2010) (No. 09-751) (relating to the Westboro
Baptist Church’s protests at military funerals); Video Software Dealers Ass’n v.
Schwarzenegger, 556 F.3d 950 (9th Cir. 2009), cert. granted sub nom.
Schwarzenegger v. Entm’t Merchs. Ass’n, 78 U.S.L.W. 3627 (U.S. Apr. 26, 2010)
(No. 08-1448) (relating to state’s attempt to restrict the sale of violent video
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campaign finance laws are respectable contenders for a grant of
certiorari.7
While the Roberts Court’s free speech jurisprudence is still
very much a work in progress, the volume of cases decided last
Term, and their significance in developing free speech law,
provide some doctrinal glimpses into where the Roberts Court
may be headed in the speech area. First, the Court has
demonstrated a willingness to take on facial invalidation of laws
infringing speech that it has not demonstrated in other areas of
constitutional jurisprudence.8 Second, while the Court has
spoken
emphatically
about
vigorous
enforcement
of
constitutional free speech principles, it has signaled a willingness
to defer to governmental judgments and countervailing policy
concerns that indicates the Roberts Court’s jurisprudence will be
more caveated than full-throated in its defense of speech.9 Of
course, if Justice Kennedy retains his role as the swing Justice in
close cases—and there is every reason to think he will—then free
speech advocates can take comfort in knowing that his fairly
consistent pro-speech voting pattern will give them the edge in
the close cases likely to come before the Court. These cases
might involve the government’s continued regulation of broadcast
television generally,10 and indecency in particular,11 as well as
games to minors).
7. SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc),
petition for cert. filed, 79 U.S.L.W. 3077 (U.S. July 23, 2010) (No. 10-145)
(whether non-corporate entities can be required to fund campaign expenditures
via political action committees after Citizens United); McComish v. Bennett, 611
F.3d 510 (9th Cir. 2010), petition for cert. filed, 79 U.S.L.W. 3109 (U.S. Aug. 17,
2010) (No. 10-238) (whether Arizona’s method of subsidizing publicly financed
candidates for office chill the speech of privately financed candidates).
8. See, e.g., Randall v. Sorell, 548 U.S. 230 (2006).
9. See, e.g., Tenn. Secondary Sch. Athletic Ass’n v. Brentwood Acad., 551
U.S. 291 (2007).
10. For instance, the Court could consider the continued vitality of Red
Lion Broad. Co. v. FCC, 395 U.S. 367, 386–92 (1969) (finding that there is no
unlimited First Amendment right to broadcast due to the scarcity of the
broadcast spectrum).
11. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. ___, ___, 129 S.
Ct. 1800, 1819–20 (2009) (Thomas, J., concurring) (noting “the questionable
viability of the two precedents that support the FCC’s assertion of
constitutional authority to regulate the programming at issue in this case” by
subjecting it to its broadcast indecency rule). Justice Thomas agreed with the
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the power to regulate cable transmissions12 in the ongoing debate
over network neutrality.13 Third, it would be a mistake to read
into Citizens United an overly generous conception of the Roberts
Court’s commitment to free speech. A careful reading of the 2009
Term forecasts a somewhat bumpier road for free speech
advocates.
II. THE 2009 OCTOBER TERM DECISIONS
A. Citizens United v. Federal Election Commission
The poster child for the Roberts Court’s First Amendment
jurisprudence in the 2009 Term was actually a 2008 Term case
that, after being reargued, was not decided until January 21,
majority, however, that Fox, which presented only a question of administrative
law, was not the proper vehicle for resolving that constitutional question. Id. at
___, 129 S. Ct. at 1822. On remand, however, the Second Circuit did reach the
constitutional question and held that the FCC’s current broadcast indecency
policy is so vague that it chills speech in violation of the First Amendment. See
Fox Television Stations, Inc. v. FCC, Nos. 06-1760-ag, 06-2750-ag, 06-5358-ag,
2010 U.S. App. WL 2736937, at *11 (2d Cir. July 13, 2010).
12. See, e.g., Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 661
(1994) (justifying cable “must-carry” provisions, which require cable networks to
carry broadcast channels, by reference to “the bottleneck monopoly power
exercised by cable operators and the dangers this power poses to the viability of
broadcast television”). The holding in Turner I relies in large part upon the
government’s ability to substantiate the argument that there is a market
failure in cable television’s “speech market,” thereby allowing it to either
depress or subsidize market participants’ speech. Id. at 640 (citing, e.g., Austin
v. Mich. Chamber of Commerce, 494 U.S. 652, 657–58 (1990), to support the
government’s intervention to prevent the distortion of speech markets).
Whether and how much of that ruling will survive the holding in Citizens
United v. FCC, 558 U.S. ___, 130 S. Ct. 876 (2010), remains to be seen, given
that Citizens United overruled Austin, in part because it “interferes with the
‘open marketplace’ of ideas protected by the First Amendment,” particularly
because “[r]apid changes in technology—and the creative dynamic inherent in
the concept of free expression—counsel against upholding a law that restricts
political speech in certain media or by certain speakers.” Id. at ___, 130 S. Ct.
at 906, 912–13 (citations omitted).
13. Network neutrality concerns the ability of broadband network
operators to favor some Internet content over other content. See generally
Christopher S. Yoo, Free Speech and the Myth of the Internet as an
Unintermediated Experience, 78 GEO. WASH. L. REV. 697 (2010) (articulating in
great detail the history and rationale of the First Amendment jurisprudence
applicable to various media in the context of a discussion of network neutrality).
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2010: Citizens United v. Federal Election Commission.14 In that
case, a non-profit corporation, the interest group Citizens United,
challenged the constitutionality of certain provisions of the
Bipartisan Campaign Reform Act of 200215 (BCRA) (commonly
known as the McCain-Feingold Act).16 The key provisions
originally at issue were BCRA’s Sections 201, 311, and 203,
which required Citizens United to publicly disclose its
sponsorship of a film (Hillary: The Movie) inveighing against
Hillary Clinton’s presidential candidacy.17 The jurisdictional
statement filed by Citizens United made clear that it challenged
only BCRA’s electioneering prohibition and public disclosure
provisions “as-applied” to its non-profit speech on a candidate
running for elected office.18 In particular, Citizens United sought
review of:
1. Whether all as-applied challenges to the disclosure
requirements (reporting and disclaimers) imposed on
“electioneering communications” by the Bipartisan Campaign
Reform Act of 2002 (“BCRA”) were resolved by McConnell’s
14.
15.
16.
17.
558 U.S. ___, 130 S. Ct. 876 (2010).
Pub. L. No. 107-155, 116 Stat. 81 (2002).
Citizens United, 558 U.S. at ___, 130 S. Ct. at 888.
Id. at ___, 130 S. Ct. at 887–88. Section 201 requires “[e]very person
who makes a disbursement for the direct costs of producing and airing
electioneering communications in an aggregate amount in excess of $10,000
during any calendar year” to file a statement with the Federal Election
Commission identifying the person making the disbursement and various other
pieces of information about that person (or entity). Id. at ___, 130 S. Ct. at 980
n.1. Section 311 amends 2 U.S.C. § 441d to require, among other things, that
an electioneering communication clearly state the name “and permanent street
address, telephone number, or World Wide Web address” of the person who paid
for the communication. Bipartisan Campaign Reform Act, § 311, 116 Stat. 81.
Section 203 amends 2 U.S.C. § 441b(b)(2) to prohibit corporations from making
electioneering communications within 30 days of a primary or 60 days of a
general election. Id. at § 203.
18. Jurisdictional Statement for Petitioner at (i), Citizens
United,
558 U.S. ___, 130 S. Ct. 876 (2010) (No. 08-205), available at
http://www.fec.gov/law/litigation/cu_sc08_cu_juris_stmt.pdf.
Citizens United
filed a jurisdictional statement, rather than a petition for a writ of certiorari,
because the BCRA provides for Supreme Court review as a matter of right in
“any action . . . brought for declaratory or injunctive relief to challenge the
constitutionality of any provision of this Act or any amendment made by this
Act.” Bipartisan Campaign Reform Act, § 403, 116 Stat. 81.
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statement that it was upholding the disclosure requirements
against facial challenge “for the entire range of electioneering
communications’ set forth in the statute.” Mem. Op. I, App. 15a
(quoting McConnell v. FEC, 540 U.S. 93, 196 (2003)).
2. Whether BCRA’s disclosure requirements impose an
unconstitutional burden when applied to electioneering
communications protected from prohibition by the appeal-tovote test, FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667
(2007) (“WRTL II”), because such communications are
protected “political speech,” not regulable “campaign speech,”
id. at 2659, in that they are not “unambiguously related to the
campaign of a particular federal candidate,” Buckley v. Valeo,
424 U.S. 1, 80 (1976), or because the disclosure requirements
fail strict scrutiny when so applied.
3. Whether WRTL II’s appeal-to-vote test requires a clear
plea for action to vote for or against a candidate, so that a
communication lacking such a clear plea for action is not
subject to the electioneering communication prohibition. 2
U.S.C. § 441b.
4. Whether a broadcast feature-length documentary movie
that is sold on DVD, shown in theaters, and accompanied by a
compendium book is to be treated as the broadcast “ads” at
issue in McConnell, 540 U.S. at 126, or whether the movie is
not subject to regulation as an electioneering communication.19
The petition thus did not raise any facial challenge to BCRA’s
provisions or the regulation of corporate speech generally.
During a heated oral argument on March 24, 2009, the
Government, responding to a hypothetical prompted by Citizens
United, asserted that Congress could have constitutionally
banned even books published with a corporation’s general
treasury funds as “electioneering communications” under §§ 441b
and 434(f)(3).20 Two months later, the Supreme Court issued an
19. Jurisdictional Statement for Petitioner, supra note 18, at (i).
20. See Transcript of Oral Argument at 26–30, Citizens United, 558 U.S.
___, 130 S. Ct. 876 (2010) (No. 08-205). For instance, during the colloquy on
this question, Justice Alito exclaimed, “That’s pretty incredible. You think that
if—if a book was published, a campaign biography that was the functional
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order directing the parties to file supplemental briefs to address
a much broader—and certainly more incendiary—question:
SHOULD THE COURT OVERRULE EITHER OR
BOTH AUSTIN V. MICHIGAN CHAMBER OF
COMMERCE, 494 U.S. 652 (1990), AND THE PART OF
MCCONNELL V. FEDERAL ELECTION COMM’N, 540
U.S. 93 (2003), WHICH ADDRESSES THE FACIAL
VALIDITY OF SECTION 203 OF THE BIPARTISAN
CAMPAIGN REFORM ACT OF 2002, 2 U.S.C. § 441b?21
equivalent of express advocacy, that could be banned?” The government
responded that “Congress could prohibit the use of corporate treasury funds” to
publish that book. Id. at ___, 130 S. Ct. at 27.
21. Order Directing Parties to File Supplemental Briefs at 2–3, Citizens
United, 558 U.S. ___, 130 S. Ct. 876 (2010) (No. 08-205) (capitalization, perhaps
fittingly, the Court’s).
Now the Court turned from reviewing the
constitutionality of forcing a corporation to disclose, e.g., that it paid for a
communication and turned to the constitutionality of prohibiting corporations
from paying to make certain statements from their general treasuries under
2 U.S.C. § 441b(a)–(c)(1), which states in relevant part that:
It is unlawful for any . . . corporation organized by authority of
any law of Congress, to make a contribution or expenditure in
connection with any election to any political office, or in connection
with any primary election or political convention or caucus held to
select candidates for any political office, or for any corporation
whatever, or any labor organization, to make a contribution or
expenditure in connection with any election at which presidential and
vice presidential electors or a Senator or Representative in, or a
Delegate or Resident Commissioner to, Congress are to be voted for, or
in connection with any primary election or political convention or
caucus held to select candidates for any of the foregoing offices . . . .
For purposes of this section . . . the term “contribution or expenditure”
includes . . . any applicable electioneering communication. . . . For
purposes of this section, the term “applicable electioneering
communication” means an electioneering communication (within the
meaning of section 434(f)(3) of this title) . . . .
2 U.S.C. § 441b(a), (b)(2), (c)(1) (2006). In turn, 2 U.S.C. § 434(f)(3) defines
“electioneering communication” as:
[A]ny broadcast, cable, or satellite communication which . . .
refers to a clearly identified candidate for Federal office; [and] . . . is
made within 60 days before a general, special, or runoff election for
the office sought by the candidate; or . . . 30 days before a primary or
preference election, or a convention or caucus of a political party that
has authority to nominate a candidate, for the office sought by the
candidate; and . . . is targeted to the relevant electorate.
2 U.S.C. § 434(f)(3)(a) (2006).
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Suddenly, instead of being a case about the constitutionality
of requiring Citizens United to disclose its responsibility for its
film about Hillary Clinton, Citizens United was on track to
become a First Amendment watershed—deciding whether
Congress could constitutionally prohibit corporations from
spending general treasury funds on “independent expenditures”
for “electioneering communications.”22 Simply put, the question
became whether a corporation could spend general corporate
funds not to market its products or services, but to advocate for,
oppose, or otherwise communicate about a candidate for public
office. The ability of Congress to restrain the flow of corporate
funds into federal elections was now at stake.
Twenty years earlier, in Austin v. Michigan State Chamber of
Commerce,23 the Court upheld a law prohibiting corporations
from using treasury funds for independent political
expenditures.24 In Austin, the Court was presented with a
Michigan statute that prohibited “corporations from using
corporate treasury funds for independent expenditures in
support of, or in opposition to, any candidate in elections for state
office.”25 The Austin Court did not dispute that corporations
enjoy First Amendment protections or that expending money on
political advocacy is a form of protected speech.26 Instead, the
Court reasoned that government has a compelling interest in
preventing the distortion of the political process that occurs when
corporations, which can “amass[] . . . large treasuries,” put their
22. Citizens United, 558 U.S. at ___, 130 S. Ct. at 886–88. In this context,
“independent expenditures” are expenditures made by an entity, supposedly
without cooperation or coordination with a political candidate’s campaign, i.e.,
independently of the campaign.
23. 494 U.S. 652 (1990).
24. Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 659–61
(1990). Even under this regime, however, corporations could still make
independent expenditures through specially organized political action
committees, which could only use funds specifically designated for political
activity. Id. at 668–69. In Citizens United, the Supreme Court held the
requirement that a corporation set up a political action committee to “speak”
unduly burdened the corporation’s free speech rights. 558 U.S. at ___, 130 S.
Ct. at 897–98.
25. Austin, 494 U.S. at 654.
26. Id. at 657 (citations omitted).
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shareholders’ money in service of political causes.27
Noting that “‘the compelling governmental interest in
preventing corruption support[s] the restriction of the influence
of political war chests funneled through the corporate form,’”28
the Court looked beyond the traditional rationale for campaign
finance restrictions—avoiding real or apparent corruption—and
opined that Michigan had an interest not only in avoiding quid
pro quo corruption, but in stemming corruption resulting from
“the corrosive and distorting effects of immense aggregations of
wealth that are accumulated with the help of the corporate
form.”29 Anticipating the dissent (and charges that would
partially undergird the Citizens United’s majority opinion
overruling Austin), the Austin Court added that the Michigan
statute it upheld, and in essence, the anti-distortion rationale
that it applied, “does not attempt ‘to equalize the relative
influence of speakers on elections.’”30
The Austin Court’s attempt to shore up its anti-distortion
rationale did not succeed.
The Citizens United majority
eviscerated the notion that corporations, by virtue of their deep
pockets, should be more limited than wealthy individuals from
participating in the political marketplace of ideas.31 The majority
characterized Austin as a departure from a jurisprudence “that
forbids restrictions on political speech based on the speaker’s
corporate identity,”32 and proceeded to claim that “Austin’s
antidistortion rationale would produce the dangerous, and
unacceptable, consequence that Congress could ban political
speech of media corporations.”33
And although media
corporations are specifically exempted from the prohibition on
27. Id. at 660.
28. Id. at 659 (quoting FEC. v. Nat’l Conservative Political Action Comm.,
470 U.S. 480, 500–01 (1985)) (alteration in original).
29. Id. at 659–60 (citing Nat’l Conservative Political Action Comm., 470
U.S. at 497); see also Austin, 494 U.S. at 702–05 (Kennedy, J., dissenting).
30. Id. at 660 (quoting the dissents of Justices Kennedy and Scalia). But
see Citizens United, 558 U.S. at ___, 130 S. Ct. at 904–05 (characterizing the
anti-distortion rationale as an attempt to “equaliz[e] the relative ability of
individuals and groups to influence the outcome of elections”).
31. Citizens United, 558 U.S. at ___, 130 S. Ct. at 904–08.
32. Id. at ___, 130 S. Ct. at 903.
33. Id. at ___, 130 S. Ct. at 905.
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electioneering communications, the majority viewed the need for
an exception to the rule as validating its abandonment of the
anti-distortion rationale: the rule cannot be consistently applied
across all wealthy corporations, the Court reasoned, even though
each can equally distort the political process by making huge
expenditures.34
The First Amendment protects “the ‘open
marketplace’ of ideas,” according to the majority, and so a law
with the effect of preventing “corporations, including small and
nonprofit corporations, from presenting both facts and opinions
to the public” was, in the eyes of the Citizens United majority,
“‘worse than the disease’” of political distortion it aimed to cure.35
There is yet another noteworthy, albeit less noticed, aspect of
Citizens United: the Roberts Court’s departure from its prior
resistance to facial challenges to laws.36
When other
constitutional rights have been invoked, the Roberts Court has
generally taken pains to avoid declaring statutes facially invalid,
particularly in situations where the Court believed the record
evidence was insufficient to indicate a substantial risk of
unconstitutional application.37 For example, in Gonzales v.
Carhart,38 the Court rejected a series of facial challenges to the
Partial-Birth Abortion Ban Act of 2003 on the ground that
“whether the Act creates significant health risks for women has
been a contested factual question.”39 In view of that “medical
uncertainty,” the Court concluded the “facial attacks should not
have been entertained in the first instance,” and “the proper
means to consider exceptions is by as-applied challenge,” where
“the nature of the medical risk can be better quantified and
balanced.”40
34. Id. at ___, 130 S. Ct. at 906.
35. Id. at ___, 130 S. Ct. at 906–07 (quoting THE FEDERALIST NO. 10, at 130
(B. Wright ed., 1961)).
36. Id. at ___, 130 S. Ct. at 892–94. The Court finds, “[i]n the exercise of
its judicial responsibility, it is necessary . . . to consider the facial validity of
§ 441b. Any other course of decision would prolong the substantial, nation-wide
chilling effect caused by § 441b’s prohibitions on corporate expenditures.”
37. Id. at ___, 130 S. Ct. at 892–94.
38. 550 U.S. 124 (2007).
39. Gonzales v. Carhart, 550 U.S. 124, 133, 161 (2007).
40. Id. at 164, 167.
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The Court employed similar reasoning in Crawford v. Marion
County Election Board,41 which involved a facial challenge to an
Indiana law requiring voters “to present photo identification
issued by the government” when voting in person.42 Here again,
the plurality found that the petitioners could not meet the “heavy
burden of persuasion” necessary to sustain a facial challenge
because of perceived deficiencies in the record.43 Given those
evidentiary shortcomings, the plurality concluded, “it is not
possible to quantify either the magnitude of the burden on [the]
narrow class of voters” who are unable to obtain photo
identification “or the portion of the burden imposed on them that
is fully justified.”44 Therefore, the “precise interests” in the law
advanced by Indiana were “sufficient to defeat petitioners’ facial
challenge.”45
The Court’s consideration of Kentucky’s lethal-injection
protocol in Baze v. Rees46 continued the Roberts Court’s growing
pattern of hostility to facial challenges. The petitioners in Baze
argued that the three-drug execution method administered by
Kentucky violated the Eighth Amendment “because of the risk
that the protocol’s terms might not be properly followed,
resulting in significant pain.”47 In rejecting that claim, the
plurality again pointed to what it viewed as the speculative
nature of the unconstitutional applications identified by the
petitioners. Noting that “an isolated mishap alone does not give
rise to an Eighth Amendment violation,”48 the plurality
concluded that “what that Amendment prohibits is wanton
exposure to ‘objectively intolerable risk,’ not simply the
possibility of pain.”49 Applying that standard to Kentucky’s
protocol, the plurality concluded that the risks identified by the
41.
42.
43.
44.
45.
46.
47.
48.
49.
(1994)).
553 U.S. 181 (2008).
Crawford v. Marion County Election Bd., 553 U.S. 181, 185 (2008).
Id. at 200.
Id.
Id. at 203 (citations omitted).
553 U.S. 35 (2008).
Baze v. Rees, 553 U.S. 35, 41 (2008).
Id. at 50.
Id. at 61–62 (quoting Farmer v. Brennan, 511 U.S. 825, 846 & n.9
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petitioners were insufficiently “substantial or imminent” to
warrant invalidating the statute on its face.50
Notably, the Roberts Court’s resistance to facial challenges
has previously surfaced in the First Amendment free speech
context as well. In United States v. Williams,51 the Court
rejected overbreadth and vagueness challenges to a federal law
criminalizing the pandering or solicitation of child pornography.52
Unmoved by the defendant’s efforts to identify possible
unconstitutional applications of the statute, the Court observed
that such objections “demonstrate nothing so forcefully as the
tendency of our overbreadth doctrine to summon forth an endless
stream of fanciful hypotheticals.”53 “[T]he mere fact that close
cases can be envisioned,” the Court stressed, does not render a
law void for vagueness, because “[c]lose cases can be imagined
under virtually any statute.”54
Taken together, those cases suggested that the Roberts Court
was developing a jurisprudence of resistance to constitutional
challenges seeking the facial invalidation of laws and adopting in
its place rules designed to sharply delimit judicial intervention in
the operation and application of state and federal legislation.
But that trend came to a screeching halt in Citizens United.
There, the Roberts Court reached out beyond the question
presented to it and beyond what the facts of the case required to
decide a broad legal question facially invalidating a provision of
federal law, and overturned twenty-year-old constitutional
precedent to boot. The Court did so in a case that plainly offered
the option of a narrower, as-applied ruling, as Justice Stevens,
joined by Justices Ginsburg, Breyer, and Sotomayor, explained in
vigorous dissent.55
The majority explained its decision to
50.
51.
52.
53.
54.
55.
Id. at 56.
553 U.S. 285 (2008).
United States v. Williams, 553 U.S. 285, 288, 303, 306 (2008).
Id. at 301.
Id. at 305–06.
Citizens United v. FEC, 558 U.S. ___, ___, 130 S. Ct. 876, 931–38
(2010) (Stevens, J., concurring in part and dissenting in part). Justice Stevens
provided a lengthy exposition of the ways the Court could have avoided such a
broad decision, beginning with the fact that the question the Court answered—
whether 2 U.S.C. § 441b’s prohibition on corporation independent expenditures
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invalidate the law on its face as necessitated by the need to avoid
chilling speech with a vague ruling that would have to be applied
on a case-by-case or ever fluctuating basis, thus providing no
guidance to affected speakers.56 That same chilling argument,
however, had not worked the year before for Mr. Williams.57
And, Justice Stevens countered that the majority’s rationale
begged the question of precisely which corporate speech is
constitutionally protected in the first place, and thus subject to
chilling.58 Justice Stevens also argued that the majority relied on
the factually unsubstantiated assertion that a case-by-case
approach, like that taken by the Federal Election Commission,
cows corporations into censored quiescence.59
Underscoring Justice Stevens’s point is the fact that the
provisions of the law that Citizens United challenged in its
jurisdictional statement—the disclosure requirements—were
upheld by the Court.60 The Court found those provisions valid as
applied to Hillary and the ads for the movie because the movie
was clearly an electioneering communication, and the public’s
informational interest in knowing who funded it was sufficient to
require disclosure notwithstanding the possibility that those
requirements burden Citizens United’s speech.61 Additionally, as
for electioneering communications is facially unconstitutional—was not the
question the appellants asked the Court to decide and was, in fact, waived by
their failure to raise it below. Id. at ___, 130 S. Ct. at 932; cf. Stolt-Nielsen S.A.
v. AnimalFeeds Int’l Corp., 559 U.S. ___, ___, 130 S. Ct. 1758, 1767 n.2 (2010)
(rejecting argument as waived because it was not raised in courts below).
56. Citizens United, 558 U.S. at ___, 130 S. Ct. at 896.
57. See Williams, 553 U.S. at 301.
58. Citizens United, 558 U.S. at ___, 130 S. Ct. at 934 (Stevens, J.,
concurring in part and dissenting in part).
59. Id. Indeed, the majority’s aversion to a case-by-case approach would
seem to depart from the reasoning of Williams, which left open the possibility of
as-applied challenges but rejected facial invalidation on the ground that “[i]n
the vast majority of its applications, [the] statute raises no constitutional
problems whatever.” Williams, 553 U.S. at 303.
60. Citizens United, 558 U.S. at ___, 130 S. Ct. at 940 (Stevens, J.,
concurring in part and dissenting in part).
61. Id. at ___, 130 S. Ct. at 915 (majority opinion). Eight Justices agreed
on this portion of the opinion (Part IV)—including the principal dissenters—
with only Justice Thomas dissenting on the grounds that he would also find the
BCRA’s disclosure requirements unconstitutional. Id. at ___, 130 S. Ct. at 979–
82 (Thomas, J., concurring in part and dissenting in part).
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applied to Citizens United, the Court put aside concerns that
disclosure requirements would chill speech by exposing an
organization’s donors to threats and intimidation for their
advocacy noting, “Citizens United has been disclosing its donors
for years and has identified no instance of harassment or
retaliation.”62
A majority of eight Justices thus agreed on the original,
limited question that the Court, in theory, could have resolved
the first time it heard argument in the case. Consequently, the
principal dissent lambasted the majority for avoiding
constitutional avoidance.63 That is, at several critical junctures,
rather than observe the Court’s normal, prudential constitutional
avoidance mechanisms—the ones the Roberts Court employed
when other constitutional claimants were before the Court—the
majority plowed ahead.64 Rather than view the case as an asapplied challenge to the application of certain provisions of
BCRA to Citizens United’s movie, the Court went out of its way
to make the case a facial challenge to the constitutionality of
corporate expenditure restrictions and a call for overturning
constitutional precedent.65 It generally failed to observe a
“‘cardinal’ principle of the judicial process”66 in deciding more
than was necessary: the Court could have ruled that Citizens
United’s movie was not going to be “broadcast[ed],” and thus was
not an electioneering communication.67
Or it could have
expanded an exception to the campaign finance law that
62. Id. at ___, 130 S. Ct. at 916 (majority opinion). The threat of
retaliation principally motivated Justice Thomas’s argument in dissent; see id.
at ___, 130 S. Ct. at 980–81. (Thomas, J., concurring in part and dissenting on
part).
63. Id. at ___, 130 S. Ct. at 930–37 (Stevens, J., concurring in part and
dissenting in part). See generally Ashwander v. Tenn. Valley Auth., 297 U.S.
288, 346–48 (1936) (Brandeis, J., concurring) (setting out what have become the
virtually canonical conditions under which the Court can, and should, avoid
passing on constitutional questions, including, for example, that the Court “will
not pass upon a constitutional question . . . if there is also present some other
ground upon which the case may disposed of”).
64. Citizens United, 558 U.S. at ___, 130 S. Ct. at 936–38 (Stevens, J.,
concurring in part and dissenting in part).
65. Id. at ___, 130 S. Ct. at 931–38.
66. Id. at ___, 130 S. Ct. at 937.
67. Id.
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previously existed for nonprofits taking only de minimis
contributions from corporations.68 And, according to the four
dissenters, in overruling Austin, the majority departed from
longstanding principles of stare decisis.69 Instead, the Citizens
United majority turned an as-applied challenge to a campaign
disclosure requirement into a full-throated cri de coeur for free
speech absolutists.70 Whether the majority or dissent are right
on their competing arguments about stare decisis and First
Amendment chill, there can be little question that the majority
decision stands in sharp contrast to the Roberts Court’s earlier
approach to facial constitutional challenges.
B. United States v. Stevens
The Roberts Court continued to trim down the size of the
U.S. Code in United States v. Stevens,71 where it again
invalidated a law on its face, this time for substantial
overbreadth.72 The challenged statute, 18 U.S.C. § 48, imposed
criminal penalties on anyone who “creates, sells, or possesses a
depiction of animal cruelty,” if done “for commercial gain” in
interstate or foreign commerce.73 The term “depiction of animal
cruelty” was defined as one “in which a living animal is
intentionally maimed, mutilated, tortured, wounded, or killed,” if
the conduct is illegal under federal or state law where “the
68. Id.
69. Id. at ___, 130 S. Ct. at 938–42.
70. Id. at ___, 130 S. Ct. at 932–36.
In the public arena, the Court’s
decision has prompted forceful statements by both sides of the campaign
finance debate. Citizens United’s critics have denounced it as nothing short of
democracy threatening. See generally Ronald Dworkin, The Decision That
Threatens Democracy, N.Y. REV. OF BOOKS, May 13, 2010. However, proponents
laud the Roberts Court for “decid[ing] that we cannot trust the government to
tell us what we should be hearing about our political system.” Todd Henderson,
Citizens United: A Defense, THE UNIV. OF CHI. LAW SCH. FACULTY BLOG (Mar. 12,
2010, 4:11:14 PM), http://uchicagolaw.typepad.com/faculty/2010/03/citizensunited-a-defense.html.
71. 559 U.S. ___, 130 S. Ct. 1577 (2010).
72. United States v. Stevens, 559 U.S. ___, ___, 130 S. Ct. 1577, 1592
(2010). By way of disclosure, article authors Millett and Amer represented Mr.
Stevens in the Supreme Court case.
73. 18 U.S.C. § 48(a) (2006).
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creation, sale, or possession takes place.”74 The statute provided
an exception for any depiction “that has serious religious,
political, scientific, educational, journalistic, historical, or artistic
value.”75
Robert Stevens, a published author and documentary
filmmaker, was convicted under § 48 for selling videos containing
decades-old footage of pit bulls participating in dogfights and
hunting other animals, as well as scenes from Japanese dogfights
(where such fights are legal).76
By an 8–1 majority, the Court concluded that Section 48
“create[d] a criminal prohibition of alarming breadth.”77 While
the statute required that the conduct be illegal in the jurisdiction
in which the depictions were created, possessed, or sold, many of
those laws relating to “the proper treatment of animals are not
designed to guard against animal cruelty.”78 Beyond that, the
Court noted, the jurisdictional provision “greatly expand[ed] the
scope of § 48,” since “[a] depiction of entirely lawful conduct runs
afoul of the ban if that depiction later finds its way into another
State where the same conduct is unlawful.”79 For example,
because hunting is illegal in the District of Columbia, the law
made the sale of most hunting videos in the District a federal
felony.80 In view of the vast differences in state and territorial
laws addressing hunting and related activities, “[t]hose seeking
to comply with the law . . . face a bewildering maze of regulations
from at least 56 separate jurisdictions.”81
Nor was the Court comforted by the government’s argument
that Section 48’s “serious value” exception sufficiently narrowed
its scope to satisfy the First Amendment.82 “Most of what we say
to one another,” the Court reasoned, “lacks ‘religious, political,
scientific, educational, journalistic, historical, or artistic value’
74.
75.
76.
77.
78.
79.
80.
81.
82.
18
Id. § 48(c)(1).
Id. § 48(b).
Stevens, 559 U.S. at ___, 130 S. Ct. at 1583.
Id. at ___, 130 S. Ct. at 1588.
Id.
Id. at ___, 130 S. Ct. at 1589.
Id.
Id.
Id. at ___, 130 S. Ct. at 1590.
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(let alone serious value), but it is still sheltered from government
regulation.”83
As in Citizens United, the Court spoke strongly of the
Constitution’s robust commitment to free speech in language
near and dear to the hearts of free speech advocates, and came
close to announcing that the Court was out of the business of
identifying categorical exclusions of speech from the protections
of the Free Speech Clause.84 The Court further regarded as
“startling and dangerous” the Government’s argument that the
First Amendment’s protections “extend only to categories of
speech that survive an ad hoc balancing of relative social costs
and benefits.”85 While allowing for the possibility that some
historically unprotected categories of speech have yet to be
identified in case law, the Court flatly rejected the idea that its
prior cases established “a freewheeling authority to declare new
categories of speech outside the scope of the First Amendment.”86
Importantly, as in Citizens United, the Court bypassed
opportunities for a narrower ruling. For example, the jury
instruction in the case on the statute’s “serious value” exception
was constitutionally indefensible and, in fact, was not expressly
defended by the Solicitor General.87 While the majority reasoned
that no as-applied challenge was presented, Mr. Stevens had
argued otherwise, as Justice Alito noted in his dissent,88
specifically invoking the jury instruction problem.89 In any
event, the majority never explained why the constitutional
avoidance canon, which is quintessentially a constraint on the
judicial power and an expression of inter-branch comity,90 would
be subject to waiver by private parties.
83.
84.
85.
86.
87.
Id. at ___, 130 S. Ct. at 1591.
Id. at ___, 130 S. Ct. at 1586.
Id. at ___, 130 S. Ct. at 1585.
Id. at ___, 130 S. Ct. at 1586.
See id. at ___, 130 S. Ct. at 1590 (“The District Court’s jury instructions
required value that is ‘significant and of great import’ . . . .”).
88. Id. at ___, 130 S. Ct. at 1592–93 n.1 (Alito, J., dissenting).
89. Brief for Respondent at 55–56, United States v. Stevens, 559 U.S. ___,
130 S. Ct. 1577 (2010) (No. 08-769).
90. See, e.g., Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–48
(1936) (Brandeis, J., concurring).
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Taken together, Citizens United and Stevens indicate that the
Court’s resistance to facial challenges in other areas of the law
has not translated woodenly into the free speech arena, an
outcome no doubt welcomed by those who favor strong protection
of speech rights. The Court, moreover, employed language in
those two opinions that strongly embraced comprehensive
protection for speech rights.
Free speech enthusiasts should not start celebrating too
early, however. In the other four speech cases of the Term, which
are discussed below, the government prevailed, and it did so in
ways that signal that the Roberts Court’s protection of free
speech has clear limits.
C.
Holder v. Humanitarian Law Project
The procession from Citizen United’s facial invalidation of a
law prohibiting speech, and Stevens’s facial invalidation of a law
prohibiting speech to Holder v. Humanitarian Law Project91
could give a free speech enthusiast whiplash. In Humanitarian
Law Project, the Court upheld a prohibition on speech, 18 U.S.C.
§ 2339B, that criminalizes “knowingly provid[ing] material
support or resources to a foreign terrorist organization.”92 The
Court upheld that provision’s application to such speech
activities as “train[ing] [members of designated terrorist groups]
. . . on how to use humanitarian and international law to
peacefully resolve disputes”; “engag[ing] in political advocacy” on
behalf of such groups; and “teach[ing] [such groups] . . . how to
petition various representative bodies such as the United
Nations for relief.”93 Those activities, the Court explained, fell
within the law’s prohibition on “‘training,’” “‘expert advice or
assistance,’” “‘service,’” and providing “‘personnel’” to designated
terrorist organizations.94
91. 561 U.S. ___, 130 S. Ct. 2705 (2010). The case is actually the
consolidation of two cases: Holder v. Humanitarian Law Project, No. 08-1498,
and Humanitarian Law Project v. Holder, No. 09-89.
92. 18 U.S.C. § 2339B(a)(1) (2006).
93. Humanitarian Law Project, 561 U.S. at ___, 130 S. Ct. at 2716
(citations omitted) (internal quotation marks omitted).
94. Id.
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Although the Court accepted that the Project intended its
speech to help only the peaceful and lawful activities of
designated terrorist groups,95 the Court deferred to the
congressional determination that any support given to such
organizations either directly or indirectly supports its unlawful,
terrorist mission and the threat those activities pose to national
security and foreign policy.96 Thus, the enthusiastic support for
political speech so present in Citizens United evaporated in
Humanitarian Law Project, replaced by repeated statements of
considerable judicial deference to the political branches’
decisions, even when they result in flat criminal prohibitions on
speech.97
The different outcomes are not wholly inexplicable. The
Supreme Court stressed that its holding was limited to speech
taken “in coordination with” the terrorist group, not independent
speech by individuals.98 The Court also noted that the law dealt
with speech supporting foreign terrorist groups, and left open
whether it could constitutionally be applied to domestic groups—
a distinction that will no doubt see airtime in the debate over
Citizens United’s application to foreign corporations.99
95. Id. at ___, 130 S. Ct. at 2717–18.
96. Id. at ___, 130 S. Ct. at 2728.
97. E.g., id. at ___, 130 S. Ct. at 2727 (“[W]e do not rely exclusively on our
own inferences drawn from the record evidence. We have before us an affidavit
stating the Executive Branch’s conclusion on that question. . . . We do not defer
to the Government’s reading of the First Amendment, even when [national
security and foreign relations] interests are at stake. . . . But when it comes to
collecting evidence and drawing factual inferences in this area, ‘the lack of
competence on the part of the courts is marked,’ and respect for the Government’s
conclusions is appropriate.”) (emphasis added) (citation omitted).
98. Id. at ___, 130 S. Ct. at 2723 (“[T]he statute is carefully drawn to cover
only a narrow category of speech to, under the direction of, or in coordination
with foreign groups that the speaker knows to be terrorist organizations.”).
99. Id. at ___, 130 S. Ct. at 2730 (“We also do not suggest that Congress
could extend the same prohibition on material support at issue here to domestic
organizations. We simply hold that, in prohibiting the particular forms of
support that plaintiffs seek to provide to foreign terrorist groups, § 2339B does
not violate the freedom of speech.”); cf. Citizens United v. FEC, 558 U.S. ___,
___, 130 S. Ct. 876, 911 (declining to reach question of “whether the
Government has a compelling interest in preventing foreign individuals or
associations from influencing our Nation’s political process”).
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Moreover, the case largely represented a factual
disagreement between the Project and Congress over whether
there could be any forms of support to terrorist organizations
that did not, at least indirectly, support the illegitimate and
illegal violence in which those groups engaged.
Congress
determined that the groups were inherently a threat to national
security and foreign policy, and only a complete stranglehold on
support for them would suffice.100 The notion that the Court
would defer to the political branches’ judgment about the
interconnected nature of foreign terrorist groups, how they
operate and how support from domestic groups might strengthen
them, as well as the enormous threat they pose to national
security, certainly has a basis in the law.101 And the Court’s
concerns about the fungibility of money and the ability of
terrorist groups to exploit and manipulate even well-intended
support have a sound basis in logic.102 The problem is that the
practice of Supreme Court deference to congressional fact-finding
expertise has been (at best) erratic of late, even in the war on
terrorism.103 What is most significant for First Amendment
100. Humanitarian Law Project, 561 U.S. at ___, 130 S. Ct. at 2727.
101. The Court has traditionally shown a willingness to defer to the political
branches on national security matters. See, e.g., Winter v. Natural Res. Def.
Council, Inc., 555 U.S. ___, ___, 129 S. Ct. 365, 377 (2008) (“We ‘give great
deference to the professional judgment of military authorities concerning the
relative importance of a particular military interest.’” (quoting Goldman v.
Weinberger, 475 U.S. 503, 507 (1986))); Dep’t of the Navy v. Egan, 484 U.S. 518,
530 (1988) (“[U]nless Congress specifically has provided otherwise, courts
traditionally have been reluctant to intrude upon the authority of the Executive
in military and national security affairs.”); Rostker v. Goldberg, 453 U.S. 57,
64–65 (1981) (“[P]erhaps in no other area has the Court accorded Congress
greater deference” than in national defense and military affairs).
102. See Humanitarian Law Project, 561 U.S. at ___, 130 S. Ct. at 2725–26.
103. Compare Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. ___,
___. 129 S. Ct. 2504, 2512–13 (2009) (using constitutional avoidance to refrain
from deciding the constitutionality of the preclearance requirements of the
Voting Rights Act while questioning the legislative record of racial
discrimination in voting), with Boumediene v. Bush, 553 U.S. ___, ___, 128 S.
Ct. 2229, 2296 (2008) (Scalia, J., dissenting) (arguing that the Court did not
give sufficient deference to the executive branch to deal with enemy
combatants). Cf. Citizens United v. FEC, 558 U.S. ___, ___, 130 S. Ct. 876, 969
(Stevens, J., concurring in part and dissenting in part) (“In my view, we should
instead start by acknowledging that ‘Congress surely has both wisdom and
experience in these matters that is far superior to ours.’” (quoting Colo.
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purposes—and what underscores the real limitations on the
Roberts Court’s free speech jurisprudence—is that the Court did
not confine its deference to the political branches’ judgments to
the national security area, as the next case illustrates.
D. Christian Legal Society v. Martinez
In Christian Legal Society v. Martinez104 (CLS), a group of
Christian law students challenged the system of registering
student organizations at the University of California, Hastings
College of the Law on the ground that it violated the First
Amendment’s protection of free speech and association.105
Hastings’ policy—the terms of which were, themselves, a
principal ground of dispute between the Justices106—required
any student organization seeking to become a Registered Student
Organization to “allow any student to participate, become a
member, or seek leadership positions in the organization,
regardless of [her] status or beliefs.”107 By becoming a registered
organization, a group would be entitled to a share of the law
school’s collected student activities fee and allowed access to
certain facilities and means of communication, such as an Office
of Student Services newsletter.108
The Christian Legal Society (CLS), however, required its
members to adhere to a statement of faith and bylaws that had
the effect of, among other things, excluding students who engage
in “unrepentant homosexual conduct” in violation of Hastings’
Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 650 (1996) (Stevens,
J., dissenting))); Transcript of Oral Argument at 12–14, Citizens United v. FEC,
558 U.S. ___, 130 S. Ct. 876 (2010) (No. 08-205) (discussing whether it is
necessary and appropriate to second guess congressional findings in the context
of the First Amendment).
104. Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the
Law v. Martinez, 561 U.S. ___, 130 S. Ct. 2971 (2010).
105. Id. at ___, 130 S. Ct. at 2978–81.
106. See id. at ___, 130 S. Ct. at 3001 (Alito, J., dissenting) (accusing the
majority of basing its analysis on a policy other than the one that Hastings
actually employed, “free[ing] [it] from the difficult task of defending the
constitutionality” of that policy).
107. Id. at ___, 130 S. Ct. at 2979 (majority opinion) (citation omitted).
108. Id.
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non-discrimination policy governing registered organizations.109
Consequently, CLS’s application to become a registered
organization was denied.110
The organization continued
operating without that status and then sued the law school for
declaratory and injunctive relief, claiming that the registered
organization non-discrimination policy is a prohibited viewpointbased mechanism of excluding organizations from a limited
public forum, and that it imposes a condition on the organization
that would violate its members’ ability to associate freely with coreligionists.111 The district court ruled in favor of Hastings on
cross-motions for summary judgment;112 the Ninth Circuit
affirmed in a two-sentence opinion that addressed the argument
that Hastings’ policy is not viewpoint neutral:
The parties stipulate that Hastings imposes an open
membership rule on all student groups—all groups must accept
all comers as voting members even if those individuals
disagree with the mission of the group. The conditions on
recognition are therefore viewpoint neutral and reasonable.113
In the Supreme Court, the initial dispute between the
majority and dissent was over what, precisely, the registered
organization policy required. CLS and Hastings stipulated
earlier in the litigation that the policy mandated that an
organization accept all comers.114 CLS, however, asked the Court
to review the Hastings Non-discrimination Policy, upon which
the accept-all-comers policy was supposedly based and which was
the policy that Hastings allegedly applied to CLS.115 The Nondiscrimination Policy prohibits discrimination on the basis of
certain traits, including religious beliefs, but is silent as to others
theoretically creating a situation in which a religious group must
109.
110.
111.
112.
113.
Id. at ___, 130 S. Ct. at 2980 (citation omitted).
Id.
Id. at ___, 130 S. Ct. at 2981.
Id.
Id. (quoting Christian Legal Soc’y Chapter of the Univ. of Cal.,
Hastings Coll. of the Law v. Kane, 319 Fed. App’x 645, 645–46 (9th Cir. 2009)).
114. See id. at ___, 130 S. Ct. at 2982–84.
115. Id. at ___, 130 S. Ct. at 2982; see id. at ___, 130 S. Ct. at 3001 (Alito, J.
dissenting).
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open itself to nonbelievers, while a political group may freely
exclude people on the basis of their failure to adhere to the party
line.116 The majority, however, embraced the parties’ stipulation
that the accept-all-comers policy applied across the board,
consequently avoiding that dilemma—and thus the more difficult
constitutional question of whether such a caveated nondiscrimination policy could be applied consistently with the First
Amendment.117
The only thing left for the majority to resolve, then, was
whether an accept-all-comers policy was a reasonable, viewpointneutral means of controlling access to a limited forum created by
the law school for student organizations.118 The majority found
that the policy was reasonable for four reasons: it ensures that
leadership and membership opportunities in registered
organizations are open to all students; it helps Hastings ensure
that the Non-discrimination Policy is enforced without
necessitating an inquiry into the motivation for excluding an
individual; it encourages the “development of conflict-resolution
skills, toleration, and readiness to find common ground”; and it
“subsumes . . . state-law proscriptions on discrimination.”119 The
majority then found that the all-comers policy is virtually ipso
facto viewpoint-neutral: “[i]t is . . . hard to imagine a more
viewpoint-neutral policy than one requiring all student groups to
accept all comers.”120
The dissent, on the other hand, accused the majority of
falsely portraying the case and the issue it presented.121 Casting
the proper question as whether the Non-discrimination Policy—
without an accept-all-comers gloss—was a viewpoint-neutral
means of allowing groups to participate in the law school’s
limited forum for groups, the dissent would have held that the
policy “plainly fails” to satisfy First Amendment requirements
116. Id. at ___, 130 S. Ct. at 2982 (majority opinion).
117. Id. Justice Stevens, on the other hand, embraced the dilemma. See id.
at ___, 130 S. Ct. at 2995–98 (Stevens, J., concurring). The dissenters,
however, made hay of it. See id. at ___, 130 S. Ct. at 3010 (Alito, J., dissenting).
118. Id. at ___, 130 S. Ct. at 2988, 2993 (majority opinion).
119. Id. at ___, 130 S. Ct. at 2989–91.
120. Id. at ___, 130 S. Ct. at 2993.
121. Id. at ___, 130 S. Ct. at 3001 (Alito, J., dissenting).
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because, while the Non-discrimination Policy forbids religious
groups from excluding people who do not share their beliefs—
that would be excluding someone based on a religious belief—it
allows secular groups to exclude people who do not adhere to the
groups’ secular credos (e.g., Democrats can exclude Republicans
and vice-versa).122 However, the dissent was also willing to
tackle the question that the majority posed, and concluded that
even an accept-all-comers policy was neither reasonable nor
viewpoint-neutral.123
As with many 5–4 decisions, Justice Kennedy’s vote with the
majority draws the jurisprudential fault line. In his concurrence,
Justice Kennedy conceded that, in a limited forum, a policy used
to limit participants may “make[] it difficult for certain groups to
express their views in a manner essential to their message.”124
However, if the purpose of creating the forum is to foster
community involvement, a policy requiring groups to accept all
comers bolsters that purpose; a policy allowing exclusionary
groups diminishes it.125 Ultimately, the decision in CLS is
narrow and tightly constrained by the stipulation on which the
majority seized. By hewing to the principle that the parties had
limited the scope of review through the stipulation, the majority
avoided the sweeping—and arguably unnecessary—kind of ruling
that the Court produced in Citizens United.
At the same time, the decision signaled that the Roberts
Court was willing to defer to the factual and policy judgments of
government officials even on free speech matters far removed
from the sensitive national security context at issue in
Humanitarian Law Project. While the majority in CLS was
careful to note that “[t]his Court is the final arbiter of the
question whether a public university has exceeded constitutional
constraints,” it nevertheless observed that “judges lack the onthe-ground expertise and experience of school administrators.”126
Therefore, the Court “‘approach[ed] [its] task with special
122.
123.
124.
125.
126.
26
Id. at ___, 130 S. Ct. at 3009–10.
Id. at ___, 130 S. Ct. at 3013.
Id. at ___, 130 S. Ct. at 2999 (Kennedy, J., concurring).
See id.
Id. at ___, 130 S. Ct. at 2988 (majority opinion).
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caution,’ mindful that Hastings’ decisions about the character of
its student-group program are due decent respect.”127 That
willingness to accord at least a measure of deference to educators’
justifications for a restriction on speech as part of a
constitutional analysis offers government defendants a thumbon-the-scale in free speech litigation that could, in close cases,
make the difference in favor of upholding governmental
regulation.
E. Doe v. Reed
In Doe v. Reed,128 the Justices were asked to resolve an issue
that Justice Thomas discussed in his separate opinion in Citizens
United: When does forced disclosure of the “sponsorship” of a
political agenda violate the freedom of speech of those sponsors
who are then potentially subjected to retribution for their
activities?129 Unlike in Citizens United, however, the Justices in
Reed proved quite solicitous of the distinction between an asapplied and a facial challenge.130 The Reed petitioners signed a
petition to place on the Washington State ballot a referendum
rejecting the State’s recognition of same-sex domestic
partnerships.131 The referendum petition was subject to the
State’s public records disclosure laws, and therefore the names
and addresses of its signatories would have been made freely
available to the public, which, in this day and age, means making
them available for publication on the Internet.132
Claiming that they would be subject to harassment and
retribution, the petitioners alleged both that the release of the
names of the signatories to any referendum petition is facially
127. Id. at ___, 130 S. Ct. at 2989 (quoting Healy v. James, 408 U.S. 169,
171 (1972)).
128. 561 U.S. ___, 130 S. Ct. 2811 (2010).
129. Doe v. Reed, 561 U.S. ___, ___, 130 S. Ct. 2811, 2816 (2010); see
Citizens United v. FEC, 558 U.S. ___, ___, 130 S. Ct. 876, 980–82 (Thomas, J.,
concurring in part and dissenting in part).
130. Reed, 561 U.S. at ___, 130 S. Ct. at 2817 (“It is important at the outset
to define the scope of the challenge before us.”).
131. Id. at ___, 130 S. Ct. at 2816.
132. See id.
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unconstitutional and that the release of the names of the
signatories to this referendum petition was unconstitutional.133
Just the facial claim was before the Court because the district
court and court of appeals ruled on that claim only.134 The Court
was thus faced with a broad, facial challenge to Washington’s
disclosure requirement, while an as-applied challenge was
waiting in the wings.135 Because the posture of the case forced
the Court to limit its review to the facial challenge, the Court
ruled the law facially constitutional.136 The Court reasoned that
the State’s interest in preserving the integrity of the electoral
process by disclosing the names of referendum petitioners and
the State’s interest in informing the electorate about who
supports a referendum were not outbalanced by the petitioners’
decidedly non-facial arguments about “the specific harm they say
would attend disclosure of the information on” this petition.137
Thus, returning to its earlier stance with respect to facial
constitutional challenges, the Reed Court rejected the facial
challenge and confined the plaintiffs to an as-applied challenge
on remand.138
While Reed thus tempered the Roberts Court’s facialchallenge enthusiasm in the 2009 Term, the decision’s usefulness
as a jurisprudential barometer is questionable. That is because,
in the Reed case, pro-speech interests and the communication of
information are on both sides of the equation.
133. Id. at ___, 130 S. Ct. at 2817.
134. Id.
135. See id.; see also id. at ___, 130 S. Ct. at 2821 (“[W]e note—as we have in
other election law disclosure cases—that upholding the law against a broadbased challenge does not foreclose a litigant’s success in a narrower one.”).
136. Id. at ___, 130 S. Ct. at 2821. Of course, the Court could have denied
certiorari and avoided that unnecessary disposition of a facial challenge. The
constitutional avoidance canon thus has emerged heavily bruised from the 2009
Term, at least in free speech cases.
137. Id.
138. Id. On remand to decide the as-applied question, the district court
entered a temporary restraining order prohibiting the disclosure of the names
on this, rather than on all, petitions. See Doe v. Reed, No. C09-5456BHS, slip
op. at 1 (W.D. Wash. Aug. 11, 2010).
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F. Milavetz, Gallop & Milavetz, P.A. v. United States
In Milavetz, Gallop & Milavetz, P.A. v. United States,139 the
Court held that the Bankruptcy Abuse Prevention and Consumer
Protection Act’s compelled disclosure requirements—like the
disclosure requirements at issue in BCRA and facially at issue in
Reed—were consistent with the First Amendment.140 The Court
read the petition as an as-applied challenge to the compelled
disclosure provisions’ application to lawyers and law firms.
Then, reading the speech constraint quite narrowly as limited to
speech instigating an unlawful act, the Court unanimously
concluded that the requirements at issue were a permissible
means to further the government’s interest in preventing
consumer deception and manipulation of the bankruptcy process
to the harm of creditors.141
Given the Court’s reliance on the proximity of the speech to
facilitating an unlawful act, Milavetz is a close cousin to United
States
v.
Williams.142
Williams
upheld
18
U.S.C.
§ 2252A(a)(3)(B), which criminalizes pandering and solicitation of
online pornography, against vagueness and overbreadth
challenges.143 Critically, the Williams Court reaffirmed that the
First Amendment poses no obstacle to congressional prohibitions
on offers to engage in illegal activity.144 Milavetz thus falls in
line with the Roberts Court’s willingness in Williams and
Humanitarian Law Project to uphold strict regulations against
speech that it deems to be an integral part of unlawful activity.
Milavetz also reaffirms the Court’s willingness to uphold
regulations of commercial speech, and thus underscored that
there are limits to the Court’s embrace of speech principles. The
bankruptcy law compelled governed entities to disclose their
“legal status and the character of the assistance provided,” but
“do[es] not prevent debt relief agencies . . . from conveying any
139. 559 U.S. ___, 130 S. Ct. 1324 (2010).
140. Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. ___, ___,
130 S. Ct. 1324, 1329 (2010).
141. Id. at ___, 130 S. Ct. at 1341.
142. 553 U.S. 285 (2008).
143. United States v. Williams, 553 U.S. 285, 288, 307 (2008).
144. Id. at 297.
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additional information.”145
Eight Justices (Justice Thomas
dissented on this point) construed this requirement to be a
standard regulation of commercial speech that is constitutional
so long as it is “reasonably related to the . . . [State’s] interest in
preventing deception of consumers.”146 While consistent with
prior commercial speech cases, the case once again signaled the
Roberts Court’s willingness to defer to governmental judgments
about the constitutionally critical nexus between speech and
unlawful activities—that is, to whether speech is integrally
related to criminal activity—and to permit regulation on that
basis.
G. Summary
So what does the 2009 Term’s series of free speech cases tell
us? It tells us that the Roberts Court has a far from absolutist
approach to free speech. To be sure, the Court appears strongly
committed to some pro-speech principles, such as vigorously
affording pure speech constitutional protection (Stevens) and
wielding the tool of facial invalidation more generously than in
other areas of the law (Citizens United, Stevens). However, the
Court’s support for free speech is far from unqualified, and the
Roberts Court appears ready to give the government both leash
and deference when it regulates speech closely related to
criminal conduct (Humanitarian Law Project, Milavetz) or
enforces what are stipulated to be even-handed limitations on
governmental speech (Christian Legal Society). Critically—and
far less rosy for free speech enthusiasts—the Roberts Court has
set a pattern of deference to governmental judgments in speech
cases (Humanitarian Law Project, Christian Legal Society,
Milavetz) that could prove the tiebreaker in future cases.
145. Milavetz, 559 U.S. at ___, 130 S. Ct. at 1340.
146. Id. at ___, 130 S. Ct. at 1341 (quoting Zauderer v. Office of Disciplinary
Counsel of the Sup. Ct. of Ohio, 471 U.S. 626, 651 (1985)).
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III. THE 2010 TERM CASES
A. Snyder v. Phelps
Snyder v. Phelps147 brings before the Court the infamous
Westboro Baptist Church, a small group of individuals that
travels the country to publicize its belief that God hates America
for its tolerance of homosexuality, particularly in the armed
forces.148 To that end, the group has taken to protesting at
military funerals with signs bearing highly offensive messages of
hate. In this case, the members staged a protest outside the
funeral of Lance Corporal Matthew Snyder, a Marine killed in
Iraq. They carried signs bearing such messages as “God Hates
the USA,” “Pope in hell,” “You’re going to hell,” “God hates you,”
“Semper fi fags,” and “Thank God for dead soldiers.”149 Later, the
group “published an ‘epic’” on its website entitled, “The Burden of
Marine Lance Cpl. Matthew Snyder,” which stated, among other
things, that Lance Corporal Snyder’s parents “taught Matthew to
defy his creator,” “raised him for the devil,” and “taught him that
God was a liar.”150
Lance Corporal Snyder’s father brought several state law tort
claims against the church, including invasion of privacy and
intentional infliction of emotional distress.151
Mr. Snyder
prevailed in the district court, but the Fourth Circuit reversed,
finding that the church’s speech was protected by the First
Amendment under the Court’s defamation case law.152 In
particular, the court regarded as “crucial” to its decision the
principle that “the First Amendment will fully protect
147. 580 F.3d 206 (4th Cir. 2009), cert. granted, ___ U.S. ___, 130 S. Ct. 1737
(2010).
148. See Brief for Petitioner at 3–9, Snyder v. Phelps, ___ U.S. ___, 130 S.
Ct. 1737 (2010) (No. 09-751); Brief for Respondents at 2–12, Snyder v. Phelps,
___ U.S. ___, 130 S. Ct. 1737 (2010) (No. 09-751).
149. Snyder v. Phelps, 580 F.3d 206, 212 (4th Cir. 2009) (internal quotation
marks omitted) (quoting Snyder v. Phelps, 533 F. Supp. 2d 567, 571–72 (D. Md.
2008)).
150. Id. (internal quotation marks omitted) (quoting Snyder v. Phelps, 533
F. Supp. 2d at 571–72).
151. Id.
152. Id. at 217–19.
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‘statements that cannot reasonably [be] interpreted as stating
actual facts about an individual.’”153 That rule encompasses (1)
“statements on matters of public concern that fail to contain a
‘provably false factual connotation’”154 and (2) “rhetorical
statements employing ‘loose, figurative, or hyperbolic
language.’”155 The Fourth Circuit held that the group’s signs
either involved matters of public concern or could not reasonably
be interpreted as asserting objectively verifiable facts about Mr.
Snyder or his son.156 The court further concluded that both the
signs and the online “Epic” “contain[ed] strong elements of
rhetorical hyperbole and figurative expression,” and, therefore, “a
reasonable reader would not interpret them as asserting actual
facts” about the Snyders.157
By focusing its analysis on defamation law, the Fourth
Circuit gave short shrift to the difficult balance the case poses
between free speech rights and the profound privacy interests on
the other side. The Supreme Court had previously recognized
that “[f]amily members have a personal stake in honoring and
mourning their dead and objecting to unwarranted public
exploitation that, by intruding upon their own grief, tends to
degrade the rites and respect they seek to accord to the deceased
person who was once their own.”158 Here, the Court could well
regard such privacy concerns as all the more substantial given
the families’ status as non-public figures who have already made
enormous sacrifices to the nation.
At the same time, the case raises the concern that the tort
laws will not ensure even-handed protection of profoundly
unpopular speech. Undoubtedly, state tort law would have
permitted the presence of individuals carrying signs praising the
military and honoring the enormous and selfless sacrifice that
Lance Corporal Snyder and his family made. Moreover, while
153. Id. at 218 (alteration in original) (quoting Milkovich v. Lorain Journal
Co., 497 U.S. 1, 20 (1990)) (internal quotation marks omitted).
154. Id. at 219 (quoting Milkovich, 497 U.S. at 20).
155. Id. at 220 (quoting Milkovich, 497 U.S. at 21).
156. Id. at 224.
157. Id.
158. Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 (2004).
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the Snyders are not themselves public figures, views about the
role of sexual orientation in military service—however
inappropriately or offensively expressed—do bear on a matter of
recognized public concern and debate.
On balance, it thus seems that the Phelpses may have the
better of the First Amendment argument, particularly with the
Stevens decision on the books. However, that outcome is far from
a foregone conclusion given the substantial privacy interests on
the other side and the likely sense of some Justices that the
Phelps’ signs came far closer to the defamation line than the
Fourth Circuit gave them credit for.159
B.
Schwarzenegger v. Entertainment Merchants Association
Next to be heard in October Term 2010 will be
Schwarzenegger v. Entertainment Merchants Association
(EMA).160 EMA is the latest in a recent surge of lawsuits
challenging state and local ordinances regulating the sale of
violent video games.161 These laws are themselves the product of
159. The case will also be noteworthy because, with the retirement of
Justice Stevens, none of the nine Justices who will decide the case has served in
the military (though Justice Kennedy was a member of the California Army
National Guard). Justice Stevens’s service in World War II seemed to have had
a discernible impact on his free speech jurisprudence, since he voted to uphold
the federal ban on flag burning in Texas v. Johnson, 491 U.S. 397, 439 (1989)
(Stevens, J., dissenting) (noting the flag’s unique symbolic status for, among
others, “the soldiers who scaled the bluff at Omaha Beach”), and likewise voted
with the majority in Holder v. Humanitarian Law Project, 561 U.S. ___, 130 S.
Ct. 2705 (2010).
160. Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th
Cir. 2009), cert. granted sub nom. Schwarzenegger v. Entm’t Merchs. Ass’n, No.
08-1448 (Apr. 26, 2010). By way of disclosure, Ms. Millett represents a group of
social scientists, medical scientists, and media effects scholars who filed an
amicus curiae brief in support of Respondent Entertainment Merchants
Association.
161. To date, in addition to California, eight other states and municipal
governments have passed laws restricting minors’ access to violent video games.
See OKLA. STAT. tit. 21, § 1040.76 (West, Westlaw through 2009 legislation);
2005 MICH. ADV. LEGIS. SERV. 108 (LexisNexis) (LEXIS through 2009
legislation); LA. REV. STAT. ANN. § 14:91.14 (LEXIS through 2010) (repealed by
Act No. 220 § 13); MINN. STAT. § 325I.06 (West, Westlaw through 2009
legislation), invalidated by Entm’t Software Ass’n v. Swanson, 519 F.3d 768
(8th Cir. 2008); 720 ILL. COMP. STAT. 5/12A-5(a), 5/12A-10(e), 5/12B-15 (West,
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a recent rise in anti-violent video game sentiment, which has
occurred at both the federal162 and state163 level. To be sure, the
antipathy towards violence in the media that underlies these
regulations is hardly a new development.164 However, the
enthusiasm with which governments have embraced prohibitions
on simulated depictions of violence voluntarily viewed by
individuals is striking.165
So much so, in fact, that the
“Terminator” himself is the named party seeking to restrict
access to violent video game content.
To date, legislative efforts to ban violent video games have
met with universal failure. Courts have consistently struck down
all prohibitions on forms of media violence,166 including the
Westlaw through 2009 legislation), invalidated by Entm’t Software Ass’n v.
Blogojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005); WASH. REV. CODE § 9.91.180
(West, Westlaw through 2009 legislation), invalidated by Video Software
Dealers Ass’n v. Maleng, 325 F. Supp. 2d 1180 (W.D. Wash. 2004);
INDIANAPOLIS-MARION COUNTY, IND. ORDINANCES ch. 831, § 831-1 (2000); ST.
LOUIS COUNTY, MO. ORDINANCE NO. 20,193 (2000); see also Petitioners’ Brief at
34–35, Schwarzenegger v. Entm’t Merchs. Ass’n, No. 08-1448 (July 12, 2010).
162. See generally Patrick R. Byrd, Comment, It’s All Fun and Games Until
Someone Gets Hurt: The Effectiveness of Proposed Video-Game Legislation on
Reducing Violence in Children, 44 HOUS. L. REV. 401, 405–10 (2008)
(summarizing the history surrounding federal efforts at violent video game
regulation).
163. See generally Clay Calvert & Robert D. Richards, The 2003 Legislative
Assault on Violent Video Games: Judicial Realities and Regulatory Rhetoric, 11
VILL. SPORTS & ENT. L.J. 203–10 (2004).
164. See generally Kevin W. Saunders, Media Violence and the Obscenity
Exception to the First Amendment, 3 WM. & MARY BILL RTS. J. 107, 145–50
(1994); Byrd, supra note 162, at 405 (“[V]iolent and sexual video games have
been the target of cries for regulation since the inception of the industry.”); Ian
Matheson Ballard, Jr., See No Evil, Hear No Evil: Television Violence and the
First Amendment, 81 VA. L. REV. 175 (1995) (discussing efforts to curb media
violence in the medium of television).
165. See Geoffrey R. Stone, Sex, Violence, and the First Amendment, 74 U.
CHI. L. REV. 1857, 1866 (2007).
166. The violent video game ordinances discussed in this section are but one
example of judicial hostility to restrictions of media violence. Speech describing
“deeds of bloodshed, lust or crime,” for example, is “as much entitled to the
protection of free speech as the best of literature.” Winters v. New York, 333
U.S. 507, 508, 510 (1948). Accordingly, the Court has subjected to demanding
scrutiny laws restricting the sale of publications depicting violence. Id.; see also
Stone, supra note 165. Lower courts as well have continuously struck down
similar statutes. See Saunders, supra note 164, at 112.
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myriad of state and local ordinances enacted to regulate the sale
and distribution of video games.167
EMA involves the constitutionality of California’s law
regulating violent video games, which penalizes anyone who
“sell[s] or rent[s] a video game that has been labeled as a violent
video game to a minor.”168 In turn, the statute defines “violent
video game” as:
(d)(1) . . . a video game in which the range of options
available to a player includes killing, maiming, dismembering,
or sexually assaulting an image of a human being, if those acts
are depicted in the game in a manner that does . . . the
following:
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole,
would find that [it] appeals to a deviant or morbid interest of
minors.
(ii) It is patently offensive to prevailing standards in the
community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary,
artistic, political, or scientific value for minors.169
167. Petition for Writ of Certiorari at 5 & n.1, 6 & n. 2, Schwarzenegger v.
Entm’t Merchs. Ass’n, No. 08-1448 (May 19, 2009).
168. CAL. CIV. CODE §§ 1746.1(a), 1746.3 (West, Westlaw through 2009
legislation), invalidated by Video Software Dealers Ass’n v. Schwarzenegger,
556 F.3d 950 (9th Cir. 2009).
169. Id. § 1746(d)(1). California’s law also provides a second definition of
violent video game as one that “[e]nables the player to virtually inflict serious
injury upon images of human beings or characters with substantially human
characteristics in a manner which is especially heinous, cruel, or depraved in
that it involves torture or serious physical abuse to the victim.”
Id.
§ 1746(d)(1)(B). However, it was conceded on appeal that this definition is
unconstitutional because it does not provide an exception for video games
containing valuable or otherwise redeeming content. See Video Software
Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 954 n.5 (9th Cir. 2009), cert.
granted sub nom. Schwarzenegger v. Entm’t Merchs. Ass’n, No. 08-1448 (Apr.
26, 2010). Thus, that provision is not before the Court.
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In addition, California’s law imposes a labeling requirement
on video games.170
California argues that this restriction is constitutional either
because it restricts only minors’ access to violent content and
therefore need not satisfy strict scrutiny,171 or, in the alternative,
because the legislature identified sufficient social science
evidence to survive even strict scrutiny review.172 The State thus
contends that § 1746 is the least restrictive means available to
achieve its compelling interest in protecting minors from the
harm of violent video games.173
Both federal courts to review this case have rejected those
arguments, with each concluding that the dearth of evidence
demonstrating that violent video games cause harmful effects
means that the law could be sustained only through the
recognition of a new category of unprotected speech.174 Because
170. CAL. CIV. CODE § 1746.2 (West, Westlaw through 2009 legislation),
invalidated by Video Software Dealers Ass’n, 556 F.3d 950 (9th Cir. 2009).
171. To survive strict scrutiny under the First Amendment, a law “must be
narrowly tailored to promote a compelling Government interest.” United States
v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000). The law also must be
the “least restrictive” means available. Id. California argues that, under
Ginsberg v. New York, 390 U.S. 629 (1968), “states may properly restrict
minors’ access to material that is fully protected as to adults.” Petitioners’ Brief
at 12, Schwarzenegger v. Entm’t Merchs. Ass’n, No. 08-1448 (July 12, 2010).
Moreover, although conceding that Ginsberg itself dealt with obscene material
of a sexual nature, California maintains that Ginsberg is not limited to that
category of speech. Petitioners’ Brief, supra, at 12.
172. California argues that even if Section 1746 is subjected to strict
scrutiny, it nonetheless survives because of the social science research relied
upon by the legislature, which California alleges shows a “correlation between
playing violent video games and increased automatic aggressiveness, aggressive
thoughts and behavior, antisocial behavior, and desensitization to violence in
minors and adults.” Petitioners’ Brief, supra note 171, at 52.
173. Petitioners’ Brief, supra note 171, at 12.
174. Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th
Cir. 2009); Video Software Dealers Ass’n v. Schwarzenegger, No. C-05-04188,
2007 WL 2261546 (N.D. Cal. Aug. 6, 2007). Regarding California’s first
argument—that the statute should be reviewed under Ginsberg’s “obscenity as
to minors” lower threshold—the Ninth Circuit rejected the notion that Ginsberg
implicated non-sexual speech. Video Software Dealers, 556 F.3d at 958. The
court of appeals reasoned that “Ginsberg is specifically rooted in the Court’s
First Amendment obscenity jurisprudence,” which has never before recognized
purely violent content to be unprotected obscene speech. Id. at 959. As a
result, the Ninth Circuit held that it would have to “redefine the concept of
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it is likely that the broad nature of California’s petition will
determine the fate of all current governmental efforts to ban
minors’ access to violent video games,175 the proponents of such
regulations have reason to be worried.
First, free speech advocates should not construe the grant of
review by the Supreme Court as cause for alarm. When, as here,
multiple states have had duly enacted laws invalidated on
federal constitutional grounds, the Court not uncommonly grants
certiorari to give the states their day in Court and a definitive
constitutional ruling before shutting the door to such
legislation.176 That very well may be all that is going on here.
Second, precedent cuts squarely against California’s law.
Eight years ago, the Supreme Court struck down a ban on
simulated child pornography.177 Surely, if simulations of a
recognized category of unprotected speech are constitutionally
protected, then simulations of protected speech merit at least
equivalent protection. Furthermore, the Supreme Court, by an
8–1 vote earlier this year, strongly reaffirmed the wide breadth of
protection afforded by the First Amendment—even to violent
obscenity under the First Amendment” in order to sustain California’s
argument. Id. at 961. The court “decline[d this] entreaty.” Id. The court of
appeals also rejected California’s second argument that the statute survives
strict scrutiny. Id. at 964–65. The court explained that, although California
mustered some evidence of a correlation between playing violent video games
and harm to minors, strict scrutiny requires at least the inference, if not rigid
evidence, of causation. Id. at 964.
175. See
generally
Editorial,
Disgusting
but
Not
Illegal,
Aug.
2,
2010,
at
A16,
available
at
N.Y.
TIMES,
http://www.nytimes.com/2010/08/02/opinion/02mon2.html; Jessica Rovello, 131
Million Reasons the Supreme Court Could Censor Video Games,
THE
HUFFINGTON
POST,
(July
8,
2010,
7:43
AM),
http://www.huffingtonpost.com/Jessica-rovello/131-million-reasons-thes_b_639054.html; Clay Calvert & Robert D. Richards, Precedent Be Damned—
It’s All About Good Politics & Sensational Soundbites: The Video Game
Censorship Saga of 2005, 6 TEX. REV. ENT. & SPORTS L. 79 (2006).
176. See generally Voinovich v. Women’s Med. Prof’l Corp., 523 U.S. 1036,
1040 (1998) (denying petition for a writ of certiorari) (Thomas, J., dissenting
from denial of certiorari) (“When state statutes on matters of significant public
concern have been declared unconstitutional, we have not hesitated to review
the decisions in question, even in the absence of a circuit split.” (citing Romer v.
Evans, 517 U.S. 620 (1996))).
177. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
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real-life images in the Stevens case—and largely signaled that
the Court was going out of the business of recognizing new
categories of unprotected speech.178 It thus is difficult to see how
California can escape the application of exacting scrutiny to its
law or survive that scrutiny.179
Indeed, in the First Amendment context, the Court has
adhered closely to the late Professor Gunther’s famous maxim
that strict scrutiny is “‘strict’ in theory and fatal in fact.”180 If, as
expected, such heightened scrutiny is applied, California will
have to persuade the Court that merely an arguable correlation
between harmful effects and violent video games—without proof
of actual causation—suffices to remove constitutional protection.
While the fact that minors are involved may help, it is dubious
that mere correlation will be enough to justify even a ban on
sales to minors.
It is true that the Roberts Court in the 2009 Term
demonstrated greater openness to disclosure requirements (that
is the part of Citizens United that the government won).181 Thus,
178. See United States v. Stevens, 559 U.S.___, ___, 130 S. Ct. 1577, 1585–
86 (2010).
179. See Video Software Dealers, 556 F.3d at 961 (calling into question the
possibility of such a result).
180. Gerald Gunther, The Supreme Court, 1971 Term—Foreword: In Search
of Evolving Doctrine on a Changing Court: A Model for a Newer Equal
Protection, 86 HARV. L. REV. 1, 8 (1972). It has been argued elsewhere that,
when compared, Humanitarian Law Project and Citizens United call into
question the Court’s application of strict scrutiny. David Cole, The Roberts
Court’s Free Speech Problem, N.Y. REV. OF BOOKS, June 28, 2010, available at
http://www.nybooks.com/blogs/nyrblog/2010/jun/28/roberts-courts-free-speechproblem/ (“[In these cases,] the Court applied [strict scrutiny] in radically
different ways.”). However, even assuming this to be true, it likely reflects the
unique national security implications of Humanitarian Law Project. In seeming
recognition of this distinction, the Chief Justice’s opinion in Humanitarian Law
Project is highly contextual, recognizing both the special role of the political
branches in regard to national security as well as the limited availability of
evidence of national security threats. See Holder v. Humanitarian Law Project,
561 U.S. ___, ____, 130 S. Ct. 2705, 2727 (2010). Those concerns are not
realistically applicable to the much less dangerous context of violent video
games. Accordingly, while the Roberts Court may not have issued its last words
on the evidentiary burden for speech restrictions surrounding national security,
there is no evidence it is poised to revolutionize that burden in other First
Amendment contexts.
181. See also Doe v. Reed, 561 U.S. ___, 130 S. Ct. 2811 (2010).
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the fact that California’s law requires disclosures related to
content, in principal, could be expected to face less judicial
hostility because disclosures increase information in a
commercial transaction for the purchasing public. But that
general principle is highly unlikely to help California in the EMA
case because the State cannot, under the statute as written,
viably and constitutionally determine which videogames are
sufficiently violent as to make such mandated disclosures
constitutional.182 That is where the disclosure aspect of the law
breaks down constitutionally.
IV. PENDING PETITIONS
Finally, the tumult generated by Citizens United and the
evolution of the Court’s First Amendment jurisprudence in the
area of campaign finance regulation will likely continue in the
2010 Term because at least one—and perhaps two—noteworthy
cases at the intersection of the First Amendment and election
law will be awaiting the Justices’ votes on certiorari when they
return in September.
One case likely to appear on the plenary-review docket in the
upcoming Term involves Arizona’s public campaign financing
scheme. In McComish v. Bennett,183 several privately funded
candidates for state office challenged the constitutionality of an
Arizona statute that grants publicly financed candidates
additional funds if a privately funded opponent exceeds a certain
expenditure threshold.184
The challengers argue that, by
subsidizing publicly financed candidates, the Arizona law chills
the speech of the privately financed candidates.185 That is
because a privately financed candidate is forced to choose
between “speaking” (by spending money), and thus subsidizing
her opponent’s speech, or remaining silent.186 The challengers
prevailed in the district court, which enjoined the law’s
182.
183.
184.
185.
186.
Video Software Dealers, 556 F.3d at 966–67.
611 F.3d 510 (9th Cir. 2010).
McComish v. Bennett, 611 F.3d 510, 513 (9th Cir. 2010).
Id.
Id.
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enforcement.187
The Ninth Circuit reversed.188 Though the candidates tried
to liken the Arizona public financing law to the BCRA
“Millionaire’s Amendment”—which was struck down in Davis v.
FEC189—the Ninth Circuit observed that none of the candidates
could demonstrate that their speech had actually been chilled by
the Arizona law.190 Finding that the Arizona law imposes only a
minimal burden on the privately financed candidate’s speech, the
Ninth Circuit analyzed it under an intermediate scrutiny
standard.191 Because the State has a sufficiently strong interest
in fighting corruption in politics by encouraging participation in
public financing, the court of appeals reasoned that the
government must be permitted to adopt some means of allowing
those candidates to remain competitive with non-participating
candidates, who could otherwise “swamp” their publicly financed
opponents.192 Increasing public financing when non-participating
candidates pass a financing threshold is a substantially related
means of doing that, the Ninth Circuit held, for otherwise, no one
would participate in public financing.193
The McComish candidates thrice sought a stay of the Ninth
Circuit’s mandate from Justice Kennedy.194 On the eighth of
June, they finally managed to obtain one from the full Court (to
which Justice Kennedy referred the question), subject to the
filing of a petition for a writ of certiorari.195 The granting of a
stay by the Court suggests that the McComish petitioners have a
good chance of garnering enough votes for certiorari because a
likelihood that certiorari will be granted is a requirement for
187.
188.
189.
190.
191.
192.
193.
194.
Id.
Id. at 513–14.
554 U.S. ___, ___, 128 S. Ct. 2759, 2766–68 (2008).
McComish, 611 F.3d at 523–24.
Id. at 525.
Id. at 525–26.
Id. at 526.
See McComish v. Bennett, No. 09A736 (Feb. 16, 2010) (stay denied by
the Court); No. 09A1133 (June 1, 2010) (stay denied by the Court); No. 09A1163
(June 8, 2010) (stay granted by the Court, to elapse if no petition for a writ of
certiorari is filed).
195. Id. The McComish petitioners filed their petition for a writ of certiorari
on August 17, 2010.
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obtaining a Supreme Court stay.196
In another campaign finance case, five individuals interested
in making independent campaign expenditures through a noncorporate entity petitioned for a writ of certiorari in
SpeechNow.Org v. FEC, No. 10-145.197 SpeechNow thus want to
extend Citizens United to speech funded by the general treasury
funds of an unincorporated business entity that expressly
“advocat[es] the election or defeat of candidates based on their
support for free speech.”198
The D.C. Circuit held that,
notwithstanding Citizens United, if SpeechNow engaged in that
activity, it would be required to comply with the same reporting
requirements as a political action committee.199 Seizing on
Citizens United’s rejection of the requirement that corporations
form political action committees to “speak,” rather than make
independent expenditures from their own treasuries, SpeechNow
petitioned the Court to, among other things, clarify the scope of
Citizens United’s ruling.200 The Court may see this case as a
jurisprudential opportunity to balance out its Citizens United
decision by ensuring that non-corporate entities have the same
speech rights as corporations. Nevertheless, the hue and cry over
the Citizens United decision itself may cause the Court to hold
back, confident that the issue will arise again in another Term
after the air has cleared.
V. CONCLUSION
While the framework of the Roberts Court’s free speech
jurisprudence remains under active construction, the sheer
volume of cases and the sweep of issues they pose in the 2009
and 2010 Terms suggest that we will soon have a far-clearer
196. See, e.g., Hollingsworth v. Perry, 558 U.S. ___, ___, 130 S. Ct. 705, 709–
10 (2010) (per curiam) (noting that a stay requires an applicant to show “a
reasonable probability that four Justices will consider the issue sufficiently
meritorious to grant certiorari”).
197. See id., 558 U.S. at ___, 130 S. Ct. at 709–10.
198. Petition for Writ of Certiorari at 3, SpeechNow.org v. FEC, No. 10-145
(July 23, 2010).
199. SpeechNow.org v. FEC, 599 F.3d 686, 697–98 (D.C. Cir. 2010).
200. Petition for Writ of Certiorari at (i), SpeechNow.org v. FEC, No. 10-145
(July 23, 2010).
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picture of where free speech law is headed. The 2009 Term itself
signaled that free speech advocates have cause for optimism
when it comes to the Court’s willingness to protect independent
speech from governmental restriction vigorously—a trend that
could be cemented if the Court strikes down the violent video
game ban in Entertainment Merchants Association, and sides
with the Phelps’ speech against common law tort actions or
overturns the campaign finance laws currently pending on
certiorari review. The Court’s willingness to employ the heavy
hammer of facial invalidation in this one area of constitutional
law is also cause for celebration by those who favor robust First
Amendment protections. But warning signs are up: there are
limits to how far the Roberts Court appears willing to go. The
more closely integrated speech is with proscribable conduct, as in
Humanitarian Law Project, Williams, and Milavetz, the more
likely the Court is to tolerate restrictions and, critically, to defer
to governmental judgments in the course of applying
constitutional scrutiny. In addition, the Court seems far more
receptive to disclosure requirements imposed by law (Citizens
United, Reed); although that arguably can be attributed to the
countervailing public speech interest in obtaining information
bearing on matters of public interest such as legislative
referenda and electioneering speech. The 2009 Term, thus, has
cast helpful light on the free speech path—a pathway that is
likely to be even more clearly illumined after the 2010 Term.
42