68 Pages Posted: 19 Jun 2017

Date Written: 2016

Abstract

This article contends that the Roberts Court, in the period from 2006 to 2016, arguably became the most speech-protective Supreme Court in memory. In a series of wide-ranging First Amendment decisions, the Court sounded and strengthened classic free speech themes and principles. Taken together, the Roberts Court’s decisions have left free speech rights much stronger than they were found.

Those themes and principles include a strong libertarian distrust of government regulation of speech and presumption in favor of letting people control speech, a consistent refusal to fashion new “non-speech” categories, a reluctance to “balance” free speech away against governmental interests, and, most notably in the campaign finance cases, a reaffirmation of the “central meaning” of the First Amendment, namely, to protect the processes of freedom of speech, press, and association that make our democracy possible. The Roberts Court’s legacy has emphasized individual and group choice over what to say, how to say it, and when and where to say it, expressing deep skepticism for permitting government to make those choices and censor the ideas and information the public may express receive.

To be sure, some First Amendment claims have been rejected by the Roberts Court. And critics on and off the Court have faulted the Court for either selectively protecting free speech, at the expense of democratic or egalitarian values, or over protecting free speech and complicating the government’s task of regulating First Amendment rights. But, when one factors in the quality and nature of the Court’s pro-free speech decisions and doctrines, the Court’s record holds up extremely well against any predecessor Court.

Finally, in a time when, in the trenches of everyday life, censorship and suppression seem more the rule than the exception, both at home and abroad, the promise of a continued First Amendment friendly Supreme Court is a welcome one indeed.