Textualism and the Bill of Rights.

• Author: Strossen, Nadine
• Position: Texualism and the Role of Judges

This Essay concerns the Supreme Court's free speech rulings, which do not take a textualist approach. Instead, the Court draws and builds upon a large body of precedents, which contain and reflect a complex web of doctrines, exceptions, and exceptions to the exceptions. Likewise, the Court uses a varying mix of analyses. Not surprisingly, this leads to unpredictable and inconsistent rulings.

To support these conclusions, this Essay will quote two federal judges from opposite ends of the ideological spectrum. First, Ninth Circuit Judge Marsha Berzon has said of free speech cases, lower court judges "do what [they] want because that's what" the Supreme Court does. (1) Justice Clarence Thomas agreed in Morse v. Frederick, (2) a case where the Court carved out yet another exception to the free speech rights that it had upheld for public school students in the landmark Tinker case. (3) Justice Thomas summed up the Court's rulings on point this way: "students have a right to speak in schools except when they do not." (4) Alas, Justice Thomas's summary applies not only to students, but also to the rest of us.

In a recent article, First Amendment scholar Ron Collins documented forty-eight distinct exceptions to speech protection that the Court has either created or continued to enforce during the past several decades under the leadership of Chief Justices Rehnquist and Roberts. (5) In another recent article that analyzes all the free speech rulings of the Rehnquist-Roberts Court, Professor David Kairys concluded that this case law entails "an incoherent tangle of rules, doctrines, distinctions, and results that lacks cohesive principles or themes. Functionally, it provides an easy basis for either vindicating or rejecting any plausible free speech claim." (6)

Despite its many inconsistencies, the Court's free speech jurisprudence does reflect some noteworthy general patterns, and this Essay will outline those that I consider to be the most important and interesting. Overall, I want to highlight what this Essay will call the "dark side" of the Court's free speech rulings, dark both in the sense that they are negative for free speech and in the sense that many people are unaware of them.

The conventional wisdom is that this Court has been very speech protective, and it certainly has issued some important decisions that strongly protect controversial types of expression. For example, in the last three years, the Court has held that the Free Speech Clause protects corporate and union campaign expenditures, (7) videos depicting cruelty to animals, (8) protestors spouting hate speech near military funerals, (9) violent video games sold to minors, (10) lies about having received military honors, (11) and the nonconsensual disclosure of doctors' prescriptions to pharmaceutical marketers. (12) These rulings have understandably drawn a lot of attention, but viewed in isolation, they do not give an accurate impression of the Court's overall free speech jurisprudence.

Several recent analyses have aimed to do precisely that, and they belie the conventional wisdom about the Court's alleged speech protectiveness. For example, Adam Liptak of the New York Times wrote about an analysis of the Court's free speech cases from 1953 to 2011 under Chief Justices Warren, Burger, Rehnquist, and Roberts; the study concluded that the Roberts Court hears fewer such cases and rules in favor of free speech at a lower rate than all three prior Courts. (13) Likewise, other studies have documented the following patterns in the Roberts Court's rulings: it rejects free speech claims much more often than it upholds them; in many cases in which it upholds free speech claims, it does so by votes of 9-0 or 8-1; and it affirms the lower court rulings when there was no circuit split, indicating that these were easy cases. (14) Conversely, in many cases in which the Court rejects free speech claims, it does so over strong dissents and overturns lower courts, (15) indicating that it is ignoring or cutting back on speech-protective precedent.

Going beyond these overall statistics--which can show only so much--if we look individually at many of...