Not a Free Speech Court

The First Amendment, at least in the Supreme Court, hasn’t been much of a friend to labor unions. Among the few First Amendment rights that the Supreme Court has expanded in the labor union context recently is the right of union represented employee to refuse to pay fees to the union that represents them. Notwithstanding reasons to believe the contemporary First Amendment is more likely to be foe than friend of labor, history suggests the contrary. This essay explains why, making three arguments. First, social movements exist only where and when there is a robust commitment to free speech, and workers have real power only when labor has the capacity to be a social movement. Second, labor gained power as a social movement by engaging in protest and it started down the path to losing power when, in a series of cases decided between 1941 and 1960, the Supreme Court largely eliminated constitutional rights to picket and boycott. In the early 1960s, just when the Court finished creating the labor protest exception to the free speech clause, it extended First Amendment protection to civil rights and antiwar protest. Just as civil rights protesters drew on the sit down strike pioneered by labor in the 1930s, the Supreme Court found a First Amendment right to engage in civil rights protest by drawing on the cases that labor unions had won in 1939 and 1940. Third, the literature on the role of lawyers for social movements between the 1930s and now suggests the importance of law to how lawyers advise their clients. The only hope for the future of the labor movement is in cultivating a spirit of protest. Without the right to engage in robust protest, labor lawyers are in a difficult place when they advise their clients, and can do little to create the legal space to enable workers and social justice activists to launch a new round of free speech fights of the sort that brought the labor movement into power in the 1930s.

At the ideological center of the Supreme Court sits Anthony M. Kennedy, whose pivotal role on the Rehnquist Court is only expected to grow in importance now that he is the lone 'swing Justice' on the Roberts Court. The Ties Goes to Freedom is the first book-length analysis of Kennedy, and it challenges the conventional wisdom that his jurisprudence is inconsistent and incoherent. Using the hot-button issues of privacy rights, race, and free speech, this book demonstrates how Kennedy forcefully articulates a libertarian constitutional vision. The Tie Goes to Freedom fills two significant voids—one examining the jurisprudence of the man at the ideological center of the Supreme Court, the other demonstrating the compatibility of an expansive judicial role with libertarian political theory. At the end of Kennedy’s tenure as the most important swing justice in recent Supreme Court history, Helen Knowles provides an updated edition of her highly regarded book on Justice Kennedy and his constitutional vision.

So far this book has shown that the widespread belief in the Supreme Court's independence can give rise to misleading expectations about its jurisprudence, especially when the justices's preferences diverge from those of majorities in the House of Representatives. Post 2004, professional commentators expected the Rehnquist Court's successor, the Court led by Chief Justice John Roberts, to move even further to the right than it had moved before. But close observers of the Roberts Court were repeatedly struck by its apparent moderation in many important cases in its first four full terms, those occurring between 2006 and 2010. This chapter looks at the Roberts Court and analyses what has happened so far. It remains to be seen whether, under the condition of continued Republican domination of the House of Representatives, the Roberts Court will continue its more aggressively conservative jurisprudence.

Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause

Reconsidering Substantive Canons

Insult to Injury: Libel, Slander, and Invasions of Privacy, by William K. Jones (University Press of Colorado, 2003) 376 pages, $45Last March marked the 40th anniversary of New York Times Co. v. Sullivan, the landmark case in which the U.S. Supreme Court held that a public official cannot recover damages for a defamatory falsehood about his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not.Thus, the Sullivan rule-for the first time in American history-subjected defamation (libel and slander) law to First Amendment limitations. And it reflects the Supreme Court's awareness of the self-censorship that would-be critics, including the news media, are likely to face in engaging in their robust, uninhibited, and wide-open debates on the government and public officials.In Insult to Injun/, William K. Jones, professor emeritus of law at Columbia University, notes that the Sullivan decision was revolutionary because it dramatically altered the law of defamation. Criticism of the government and public officials is now a matter of constitutional privilege for Americans.Jones undertakes to examine defamation and related expressive transgressions such as invasion of privacy and intentional infliction of emotional distress. The book is divided into six parts. Its first four relate to and common law on press freedom and defamation. Part 5 centers on intrusions and public disclosures of embarrassing facts. While Part 6 purportedly concludes the book, its two chapters probe the fact-fiction relations and the Internet law.Although he discusses the U.S. Supreme Court's rulings, Jones pays close attention to lower courts' application of the Supreme Court's guidelines on the balancing of freedom of expression with individual reputation. This is a refreshing departure from the often-unwarranted fascination of legal scholars with the Supreme Court's free speech jurisprudence. As Judge A. Richard Posner of the 7th U.S. Circuit Court observed recently, the Supreme Court decisions receive disproportionate attention as compared with those of other appellate courts.Jones considers the current libel law a losing game. And his book is a measured effort on his part to make the unsatisfactory, complex law more manageable. But he is no advocate of the wholesale revision of substantive principles. Instead, he prefers procedural reform. Jones' three-stage proposal aims to make libel lawsuits expeditious and largely cost-free while vindicating plaintiffs' reputations if their claims are merited.Retraction or corrections to libel victims are first recommended as a moneysaving means to clear their names. If this pre-litigation approach does not work, Jones suggests that it move to the initial phase of the litigation. The first phase of the libel litigation revolves around the issue of falsity, not around whether the defendant was at fault. Under Jones' formula, the second phase of the libel litigation kicks in where falsity is particularly complicated. Here, the plaintiff must prove falsity and the requisite degree of fault (actual malice or negligence) as well. …

An empirical examination of decisions by the Roberts Court can illuminate the contemporary Supreme Court’s impact on criminal justice. The Court’s decisions and the voting patterns of its justices confirm the Roberts Court’s generally conservative reputation with respect to criminal justice. However, contrary to commentators’ assertions about a five-member conservative majority actively reshaping criminal justice law in a rights-restricting fashion, the deeply-divided Court actually produces a notable number of rights-protective liberal decisions. Indeed, when the Roberts Court is most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record places him at the Court’s center. Justices Antonin Scalia and Clarence Thomas have also made important contributions to liberal decisions in divided cases. Generalizations about the Roberts Court’s conservatism and judicial activism in criminal justice are overstated without recognition of the voting patterns that have contributed to the production of rights-maintaining and rights-expanding liberal decisions.

Statutory Interpretation In The Roberts Court’s First Era: An Empirical and Doctrinal Analysis

The rise of human resources departments parallels the increase in the myriad statutory and regulatory requirements that govern the workplace. The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented by HR professionals who must carry out these directives on a daily basis. This article looks at the Roberts Court's labor and employment law cases through the lens of human resources. In adopting an approach that is solicitous towards HR departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players. Even if labor and employment law scholars do not agree with the solicitousness, they should use the opportunity to develop a positive theory of HR, one that directs this workforce in a just and ethical manner.

The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures

The Effect of Ideology and Proportionality of the U.S. Courts of Appeals on the Likelihood of Supreme Court Reversal

Constitutional scholars Christopher P. Banks and John C. Blakeman offer the most current and the first book-length study of the U.S. Supreme Court’s “new federalism” begun by the Rehnquist Court and now flourishing under Chief Justice John Roberts. Using descriptive and empirical methods in political science and legal scholarship, and informed by diverse approaches to judicial ideology, from historical to new institutionalist, they investigate how the U.S. Supreme Court rulings have shaped the political principle of federalism. While the Rehnquist Court reinvorgorated new federalism by protecting state sovereignty and set new constitutional limits on federal power, Banks and Blakeman show that in the Roberts Court new federalism continues to evolve in a docket increasingly attentive to statutory construction, preemption, and business litigation. In addition, they analyze areas of federalism not normally studied by scholars such as religious liberty and foreign affairs.

Court decisions concerning freedom of expression in the nation's public schools have shifted to a more restrictive model since the Columbine High School shootings in April 1999. Instead of following the Supreme Court's Tinker v. Des Moines standard, which states that student First Amendment rights guarantee freedom of expression unless that expression would cause a material and substantial disruption in classroom activities, the nation's courts have been more likely to limit student expression if it socially unacceptable, criticizes administrators, or deviates from the mainstream. Until the courts adopt the more expansive protections of student expression detailed in Tinker, the questions remains: Where does student expression inside and outside the classroom fall in the realm of governmental content restrictions? The picture post—Columbine is far from clear.

In June 2011 the U.S. Supreme Court ruled that video games enjoy full free speech protections and that the regulation of violent game sales to minors is unconstitutional. The Supreme Court also referred to psychological research on violent video games as "unpersuasive" and noted that such research contains many methodological flaws. Recent reviews in many scholarly journals have come to similar conclusions, although much debate continues. Given past statements by the American Psychological Association linking video game and media violence with aggression, the Supreme Court ruling, particularly its critique of the science, is likely to be shocking and disappointing to some psychologists. One possible outcome is that the psychological community may increase the conclusiveness of their statements linking violent games to harm as a form of defensive reaction. However, in this article the author argues that the psychological community would be better served by reflecting on this research and considering whether the scientific process failed by permitting and even encouraging statements about video game violence that exceeded the data or ignored conflicting data. Although it is likely that debates on this issue will continue, a move toward caution and conservatism as well as increased dialogue between scholars on opposing sides of this debate will be necessary to restore scientific credibility. The current article reviews the involvement of the psychological science community in the Brown v. Entertainment Merchants Association case and suggests that it might learn from some of the errors in this case for the future.

Most teens tell their parents when seeking birth control or abortion services. However, if all family planning and abortion facilities had to notify parents, some 33,000 more unwanted pregnancies would occur among teens now practicing effective contraception; some 42,000 now obtaining legal abortions would turn to illegal practitioners or have unwanted births. U.S. courts have consistently upheld the right of mature minors to consent for contraceptive and abortion services.' In 1976, the Supreme Court ruled in Planned Parenthood of Central Missouri v. Danforth2 and in Bellotti v. Baird3 that parents cannot veto a minor's decision to obtain an abortion. In 1979, the Court reaffirmed that decision, indicating that neither consent nor notification may be required without offering a minor prompt administrative or judicial review to determine whether she is mature enough to give informed consent and, if she is not, whether the abortion is in her best interests .4 These decisions have also been interpreted as establishing the right of mature minors to obtain prescription contraceptives on their own; their right to obtain nonprescription contraceptives was established by the Supreme Court in 1977 in its ruling in Carey v. Population Services International.5 Despite these decisions, a number of states have attempted to impose parental consent requirements through legislative action; these laws have generally been struck down by the courts,6 usually because they did not allow prompt judicial review. Two states, however, have recently enacted parental consent requirements: Louisiana's law was passed late in 1980, and the Massachusetts law is being stayed under a temporary restraining order until the U. S. Court of Appeals for the First Circuit has reviewed an appeal of a lower-court decision upholding the law. Both the Louisiana and Massachusetts laws differ from previous statutes in that they allow a teenager to petition the court in order to obtain an abortion without previously notifying or involving her parents. 7 Only four states-Maryland, Montana, Tennessee and Utah-have notification requirements for the provision of abortion services to minors (in Maryland, doctors are not required to notify parents if they believe that the minor will be subjected to physical or psychological abuse if her parents know about her abortion).8 The Utah law has been appealed to the U.S. Supreme Court after being upheld by the Utah State Supreme Court;9 a decision is expected early in 1981. Family planning agencies that receive federal funds under Title X of the Public Health Services Act or under Titles XIX or XX of the Social Security Act are required to provide services to sexually active minors "without regard to age or marital status." A recent federal district court decision has held that no agency receiving such funds can require parental consent or notification before providing birth control services to minors. 10 Private agencies providing abortion or family planning services that do not receive such federal funds, however, are free, in the absence of a specifically applicable statute, to require consent or notification of parents or to serve minors on their own consent. It is not likely, given the current concern about family values, that there will be a quick end to the controversy over parental involvement in the decision of adolescents to use birth control and obtain abortions. It is useful, therefore, to examine the current parental consent and notification policies followed by abortion and family planning service programs, as well as the extent to which teenagers are already talking to their parents about these decisions, and, if they are not, what they would do if their parents were told. This article summarizes the findings of two national surveys conducted by The Alan Guttmacher Institute (AGI) that address these questions.