The 'weaponized' First Amendment at the Marble Palace and the Firing Line: Reaction and Progressive Advocacy Before the Roberts Court and Lower Federal Courts
| Publication year | 2023 |
The 'Weaponized' First Amendment at the Marble Palace and the Firing Line: Reaction and Progressive Advocacy Before the Roberts Court and Lower Federal Courts
Seth F. Kreimer
It once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court's First Amendment work as a "weaponized" redoubt of reaction.
This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005-2020 Terms, it turns out that successful litigants are four times as likely to come from the coalition of right-wing interests (businesses, right-wing Christian organizations and individuals, and mobilizations against abortion and LGBTQ rights) as from progressive proponents of change. Right-wing and allied litigants prevailed more than twice as often as progressive allies.
This Article considers whether the right-wing "weaponization" of the First Amendment looks the same at the firing line. Examining a sample of 733 First Amendment cases decided in 2020 and 2021 in the lower federal courts reveals a different story. Viewed from the firing line, First Amendment doctrine is not monopolized by the forces of reaction. It continues to open doors for advocates of progressive social change. In the lower court sample, successful litigants were far more likely to come from the ranks of progressives; progressive litigants were almost twice as likely to succeed as their right-wing counterparts.
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This Article concludes by exploring reasons that might explain this divergence: the possibility that lower courts simply lag Supreme Court case law, the unremarked Roberts Court reaffirmation of earlier doctrines which can be invoked by progressive litigants, the impact of the central role "content neutrality" plays under the Roberts Court, the differences between Supreme Court adjudication and the dynamics of litigation in lower courts, and the emerging protections for access to and dissemination of information.
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I. THE GOLDEN AGE OF THE PROGRESSIVE FIRST AMENDMENT........ 1146
II. REACTION AND THE FIRST AMENDMENT: THE VIEW FROM THE ROBERTS COURT.......................................................................... 1150
A. The First Amendment "Weaponized"....................................... 1150III. THE POLITICAL INCIDENCE OF THE FIRST AMENDMENT AT THE FIRING LINE................................................................................. 1155
B. The Political Incidence of the First Amendment in the Supreme Court: A Census ..................................................... 1152
IV. WHY DOES THE VIEW FROM THE LOWER COURTS DIFFER?........... 1161
A. Lagging Lower Courts? Political Access Cases..................... 1161
B. Classic Doctrines Protecting Progressive Contention Remain Available.................................................................. 1163
C. Content Neutrality: Virtual Representation by Right-Wing Litigants ............................................................................... 1166
D. Protests, Facts, and the Norms of Trial Judges ..................... 1169
E. The First Amendment and Persuasion: Protection in Lower Courts for Dissemination and Access to Information by Advocates for Progressive Change ................ 1175
CONCLUSION........................................................................................... 1179
APPENDIX: METHODOLOGY..................................................................... 1181
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When I began teaching the law of free expression four decades ago, it seemed clear that the doctrine developed by the Supreme Court in the previous generation stood as a bulwark protecting grassroots progressive struggles for social change—call this the Golden Age of the Progressive First Amendment. In the four decades after the New Deal, the Court's doctrine provided shields against official repression to contemporary activists seeking to realize the promise of America.
In the 1940s, the Supreme Court deployed First Amendment doctrine to protect the labor movement.1 The Court established the constitutional rights of labor organizers to hold open-air meetings and distribute leaflets in streets and parks as "public forums."2 It guarded the right of labor activists to picket peacefully,3 to criticize judges,4 and to encourage union membership without seeking a state license.5
The Court equivocated in confronting the red-baiting of the McCarthy Era. But by the end of the 1950s and through the next decade, it established firm protections for civil rights organizers against intrusive investigations;6
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retaliatory defamation actions;7 efforts to hamper litigation campaigns;8 prosecution of organizing activities;9 interference with picketing, demonstrations, and protest marches;10 and suits to penalize boycott
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organizers.11 The McCarthy Era equivocation came to be viewed as a regrettable lapse.12
During the public contention of the 1960s and 1970s over the Vietnam War, the Court recognized the rights of students to peacefully wear anti-war symbols in schools,13 and the rights of demonstrators to wear military uniforms in skits that "tended to discredit armed forces,"14 to tape a peace symbol over an American flag,15 to use "opprobrious words" to police officers,16 and to display vulgar anti-war slogans.17 It recognized First Amendment limits on the discretion of public universities to refuse recognition of dissident student
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organizations,18 and on the authority of the U.S. government to prevent publication of the Pentagon Papers.19 It reversed the conviction of an anti-war demonstrator whose words did not amount to incitement20 and that of a critic of conscription whose hyperbolic political commentary did not constitute a "true threat."21
The doctrines developed by the Supreme Court during these years thus emphatically and prominently protected each of the links of the process of citizen-driven social change: (A) the process of organization; (B) the effort to protest, publicize, and persuade in speech and in the press; and (C) the efforts to mobilize outrage into action.
Importantly, the Court not only protected each of these links from criminal prosecution. It constrained non-criminal sanctions and limited the ability of governments to deprive organizers of the channels of communication that facilitated public contention.22
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A. The First Amendment "Weaponized"
By contrast to the Golden Age, in the twenty-first century, and particularly since the appointments of Chief Justice Roberts and Justice Alito, a number of observers have begun to view the Supreme Court's First Amendment work as a redoubt of reaction.23 These concerns have basis in the case law.
The Roberts Court's free speech decisions have entrenched plutocracy by eviscerating campaign finance regulation.24 They have barred transparency
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requirements regarding tax-deductible contributions to right-wing advocacy organizations.25 But the Roberts Court abandoned the field when it came to protecting democracy and minority voices from partisan gerrymandering and onerous voting rules.26
The Roberts Court's First Amendment doctrine has protected business interests against health and privacy regulation.27 It has innovated to "weaponize" the First Amendment against labor unions.28 Under the Roberts Court, the First Amendment has guarded homophobic zealots who vented vituperation against a grieving family.29 It has protected a baker who declined to sell cakes for same-sex weddings, and an adoption agency that refused to serve same-sex families.30
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It has shielded abortion protesters from a requirement that they clear a buffer zone around the premises of abortion providers, anti-abortion "crisis pregnancy clinics" from the requirement that they alert patients to their lack of medical training, and anti-abortion businesses from being required to furnish contraceptive coverage to their employees.31
At the same time, the Roberts Court denied First Amendment protection to progressive plaintiffs who sought to train members of disfavored foreign organizations "on how to use humanitarian and international law to peacefully resolve disputes"; to "engag[e] in political advocacy on behalf of Kurds who live in Turkey"; "to petition various representative bodies such as the United Nations for relief"; or "to present claims for tsunami-related aid to mediators and international bodies."32
B. The Political Incidence of the First Amendment in the Supreme Court: A Census
These eye-catching highlights from the Roberts Court in fact represent broader trends. Table 1 below sets forth a full census of the 104 Roberts Court First Amendment cases decided during the 2005-2020 Terms, revealing fifty-nine cases where First Amendment claims were successful—a success rate of 56%.33 These successes predominantly vindicated the claims of right-wing litigants. Among the successful cases, two out of three of the claimants (39/59) came from the coalition of right-wing interests: businesses, right-wing Christian organizations and individuals,34 mobilization against abortion and LGBTQ+
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rights, and right-wing activists. Only 13% (8/59) of successful claims involved progressive proponents of citizen-driven change and their religious allies. Unaligned individuals and organizations, along with prisoners...
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