Transcripts For CSPAN2 Cato Institute Discussion On First Am

Roberts court more than any other Supreme Court justice in the recent history john roberts has played a defining role to change our free speech law writing twice as many majority opinions in anyny colleagues b a once philosophicl and tactical 95 percent of those cases decided it is 15 years roberts has been in theaj majority so there is Something Special about this area of cases that speaks to how john roberts sees the court in the First Comprehensive report ron and david each of published looking at those 56 cases handed down by the Roberts Court the authors eyeopening study provides a l detailed look at of the justices differing approaches in here to tell us are the authors and david henson who serves as a legal fellow with individual rights and education with the freedom form is to. Larissa is dean and leading professor of lot university of Missouri School of law where the focus of the research and teaching is tort law and First Amendment with emphasis on freespeech issues and social media. Next a partner at davis right where he specializes in Media Communication Information Technology law and the new which capacity he is myy lawyer. And then now we will explain their study. And we expect on appreciate to talk about this with the Roberts Court. And its an honor to have both of you. So thank you. Just a little footnote im retired from the university of want to make sure that in the record with all subsequent biographies one thing that is undoubtedly certain is the First Amendment jurisprudence this is an area of particular interest i am probably the most aggressive defender of the First Amendment and john roberts in a 2019 interview with former attorney general gonzalez and now the law school dean. The most aggressive defender of the firstiv amendment because they are so significant with the numbers that we mentioned to you. At 95 percent of the times and those that were defied on decided during the tenure. The john roberts is assigning the free amendment and that is assigned himself almost 30 percent of the time and has authored twice as many majority opinions and moreover he has written moree majority opinions no other person has written more when it comes to free speech then justice breyer, ginsburg, so the mayor and kagan combined. All of their majority opinions still fewer than john roberts. As Justice Scalia and thomas and alito. If you combine theres they are no greater in number than that of the chief justice. And while Justice Kennedy has when it comes to First Amendment during his tenure john roberts has offered more than twice as many opinions then justice ginsburg. So how does this compare with her and quest record . And if you affirm freespeech cases 20 percent of the cases but roberts has done soon over 50 percent of the cases. In this areang significantly and my colleagues may want to touch on this. May want to touch on t. Opinions from the roberts course are Citizens United. From the liberal Vantage Point and when iwhen it comes to campn financing cases and free speech cases by their measure it is weaponize in the First Amendment and they take exception to the fact. Theres been a lot of talk given the enormous contributions given to that by Justice Scalia. We are all originalists in one odway or another today. That may be true but certainly not when it comes to the Roberts Court and its free speech jurisprudence. In no free speech case has Justice Scalia ever gone into any discussion of the jurisprudence. He did talk about thehe petition clause and in terms of justice apart from the student speech case and brown v entertainment merchants and a discussion about intentional threats he hasnt written very much in this area. He did have a certain case we may have a lot of originalists on the court but in terms of the free speech jurisprudence, there is an absence of any extended discussions. I want to mention a couple of things before i hand over to david. The First Amendment is what the judges right and its important to keep in mind people like paul clement are the ones who keep the First Amendment live in many respects when it comes to their litigation. A new face that is going to be seeing a lot more you may know the name the masterpiece she has a petition before the court involving customs and samesex weddings and another in a disclosure requirement casee so keep your eye on those when it comes to the First Amendment in terms of Supreme Court litigation and with that im happy to turn over to my colleague. Thanks, ron and thanks for the opportunity to participate in this project with you and many thanks to cato. I want to talk about three things when it comes to the Roberts Court and First Amendment. Those are category, context and content. Those are all important in First Amendment methodologies. One way that we determine whether speech ison protected by the First Amendment is to determine whether it falls into an unprotected category of speech. For example the Supreme Court recognized the fighting words exception in 1942 and over time the United States Supreme Court has narrowed these unprotected categories of speech leading to a body that protect us more a freedom of expression. One of the hallmarks of the Roberts Court has been its reluctance to recognize new unprotected categories of speech and the Roberts Court has done this four times. In 2010 in United States versus stevens, they refused to recognize the unprotectedd category of images of animal cruelty. In 2011 the association versus brown, u. S. Supreme court refused to recognize exception for socalled violent video games. The 2012 the Supreme Court refused to recognize a new unprotected category for funeral protests by the Westborough Baptist church and in 2012 as well, United States versus alvarez the Supreme Court refusedre to recognize a new unprotected category for purely. Speech. Turning to the context it matters in the First Amendment jurisprudence and specifically i refer to the status of the speaker. Its a reality of modern First Amendment law that the government has greater power to restrict speech when it acts as an employer, educator, warden or commanderinchief. Stated another way if you are a Public Employee or Public School student, if you are a prisoner or a member of the military, you have less free speech rights than you would in general society. Y. On this front, the Roberts Court hasnt been terribly protective of free speech. For example, in 2006, the United States took a very narrow view of the First Amendment rights of prison inmates. Something far less than what for example Justice Thurgood marshall took with martinez in 1974. In 2006 the Supreme Court decided a decision in which the United States Supreme Court by a 54 ruling ruled when Public Employees speak pursuant to their official job duties, the constitution doesnt insulate them from discipline, and they have no First Amendment protection. It doesnt matter how important the speechch is. It doesnt matter if the employee is a whistleblower, if the employee is engaged in official job duty speech, they have absolutely no First Amendment protection. In 2007, the Roberts Court also in a 54 vote failed to recognize the freespeech rights of the Public School students in the case known as the long hits for jesus case because several upended although they were upended as the torch for the relay was passing through juneau alaska. In context of the court has been quite deferential to the Public Schools and public employers and certainly to prisons. Now, with regards to content, probably still the chief methodological tool we have in the First Amendment jurisprudence is the socalled contentt discrimination principle. Its probably express most tellingly by Justice Thurgood marshall and the Chicago Police department versus mosley in 1972 when he wrote above all else the First Amendment means the government may not restrict speech because its message, its ideas, its subject matter and its content. For better or worse the content discrimination principle is the chief tool of Justice Oconnor said in 1904, no better alternative has come to light. In 2015, the Roberts Court decided one of the most important First Amendment decisionsd in memory. The case involved in arizona sign ordinance that provided very different treatment whether a sign was an ideological sign, political sign or temporary durational sign. Both a Federal District court and ninth u. S. Circuit court of appealshi ruled that this arizoa sign ordinance was content neutral because the underlining purpose of the law wasnt to discriminate against content review points. When it goes up to the United States Supreme Court, however, the United States Supreme Court unanimously reverses but they do so under very different rationales. Justice Clarence Thomas was the author of the majority opinion. What justice Clarence Thomas said is we have to take that crucial first step if the law does make distinctions based on content, then its content based and as such its subject is strict scrutiny. Justice essentially says no, a lot of times Something Like that doesntn, have an underlining purpose of content discrimination. Thank you. Thank you, david and ron. Fascinating stuff. If you have questions you can either submit them on the webpage if that is where you are viewing this, or through the facebook and twitter and youtube platforms using the hashtag cato. With that i will turn over. I want to thank the Cato Institute for letting me be here today. My focus as a scholar has been on the media, both old media, Mainstream Media and new media. My remarks today will be focused on the Roberts Court and what it had to say about the media. In the last 15 years since roberts has been chief justice, theres been a digital revolution. The newspaper industry has been very hard hit by the digital revolution, and today there are 47 fewer newspaper reporters, editors, photographers than we had in 2015. Meanwhile, the tech giants have become media giants to control ourf access to most of the content we receive. So, one might think in light of this, they would have taken new and old media casesew to clarify freedom of the press and how does this relate to the freespeech rights. But in fact we have the story of the dog that didnt bark. Prior cords had taken a load of interest and the media litigated the cases to the court. For example its a type of case that they are always interested in but in the last 15 years, the Supreme Court hasnt really done anything for the reporters privilegreportersprivilege or af issues the media are more interested in. From the few cases its actually very little. In fcc versus the television station, the Supreme Court had the opportunity to tell us whether the fcc can regulate broadcast decency under the First Amendment, so under the older precedents the court said the broadcast medium is different than others because of its pervasiveness, because of the scarcity of the airways and that line of reasoning had certainly been challenged when often times the consumer cant tell whats broadcast over the airways or what they are getting through the internet because it all comes through the same platform so the differential treatment of broadcast media seems g to collapse or potentiay its a new approach that the Supreme Court neatly sidestepped so we dont know if the First Amendment still can treat broadcasters differently in terms of allowing some content regulation we wouldnt allow another media. The Supreme Court took up the case that will be quite interesting about b broadcast media. Its called National Association of broadcasters versus prometheus radio project and that case will address the crossownership rules that prohibit a newspaper and a broadcaster from ownership of the media in the same market. Its designed to make sure that there is a diversity of ifdifferent voices and viewpoins in the marketplace of ideas by restricting ownership so the court is going totempt t aestm tan minors and the Supreme Court in that case basically didnt except fear mongering and the dangersd of media taking over the mind of the youth so they said theres no evidence interactive violent video games or any different and california cant restrict them in those ways they were attempting to do. The only other cases dealing with new media are not very instructive. There is one in which the court recognizes all of us use social media as a public forum to get our views out, which is true and useful, but theres no telling what it might mean for future cases involving the new media. Then in another case involving threats made over facebook orpre court sidestepped the opportunity to tell us whether the threat occurred onhe social media changed the First Amendment analysis in any significant way so at every turn they either avoided or sidestepped thete opportunity to tell us Something Interesting about the old media rights and new media rights in the last 15 years. Now, what is the Court Interested in . Obviously, as we said previously, the Roberts Court is interested in the First Amendment cases. They are just not that interested in the media cases. So, they are interested in free speech cases as they affect the electoral process. And in those cases, they try to set out veryet concretely a few key principles. They set out concretely the government limits on political spending are a limit on political speech and perhaps most famously they did a that in Citizens United, but theres a whole line or string of cases investigating the principles that limit the political spending or political speech and the a other principles that coms through clearly in the decision isio that the government may not impose limits on speech in order to level the Playing Field between the speech of rich and poor speakers, and again these are the principles that the Roberts Court seems most interested in. D they have little to do with the media but there are some other cases that do establish precedents that do benefit the old and new speakers. One of the principles that the Roberts Court has upheld is the protection for unpopular speakers. So theyve given broad free speecfreespeech protections to funeral protesters, about as unpopular a speaker as you could ever imagine, and then theyve given broad protections to people who lie about receiving a constitutional medal of honor. So it really is speech that doesnt call out to us that it strikes us as having much value, but the court has been those type of unpopular speakers and speech to the broad protection, and i think that suggests the calls we are getting now for the regulation of theul fake news ae going to fall on deaf ears in the Supreme Court because the Supreme Court is rightly going to trust each of us to decide whats true, whats f