Supreme Court Breakfast Table

Watch Out, the Supreme Court’s Conservatives Are Using the First Amendment as a Weapon
An email conversation about the news of the day.
June 27 2014 5:07 PM

Supreme Court Breakfast Table

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Watch out, the Supreme Court’s conservatives are using the First Amendment as a weapon.

Supreme Court.
Temple of First Amendment supremacy.

Photo by Win McNamee/Getty Images

And yet, I have dutifully convinced myself, for all the reasons Larry gives, that the First Amendment means protecting the freedom of speech of perfect plaintiff Eleanor McCullen, the Boston-area anti-abortion protester who stresses that she is a short, plump grandmother who just wants to gently persuade women to reconsider as they head into an abortion clinic. To me, and to the unanimous court, it mattered that she was asking to stand on the sidewalk—a quintessential public space. Also important, as the court summarizes Roberts pointing out for the majority, a separate federal law “imposes criminal and civil sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services.” And if anti-abortion protesters now take the court’s decision as license to block clinic entrances, the police can crack down via local traffic and crowd-control laws. Last point: Massachusetts couldn’t point to a single prosecution or court order against clinic protesters since the 1990s (when, no question, clinic violence was a serious and even deadly problem in Boston).

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

But now I wonder if I’m being a sucker for First Amendment absolutism, for two reasons. The first is how the court handled what Massachusetts had to say about the lack of prosecutions and injunctions. The state said that it was the 35-foot buffer zone that was keeping the peace—in other words, the law the court just struck down was the key to (relative) harmony. For support, Massachusetts pointed to a 1992 Supreme Court ruling, Burson v. Freeman, which allowed a 100-foot buffer zone around a Tennessee polling place, where campaign workers couldn’t solicit or hand out materials. In that case, the court accepted the state’s argument that the buffer zone prevented voter intimidation and election fraud—without evidence that either was actually a problem. But now, in a case with a history of violence, “it is not enough for Massachusetts simply to say that other approaches have not worked,” the court says.

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Is that because evidence of voter intimidation and election fraud is a lot harder to come by than evidence of clinic harassment, as Roberts claims? Or, more discomfiting, is it because the court views voters as more deserving of consideration than abortion seekers? I worry it’s the latter. Though it’s worth noting that the court’s four liberal-moderates joined Roberts, blocking Justice Antonin Scalia (along with Kennedy, Alito, and Thomas) from going much further.

Here’s my other, bigger concern, though: I worry that even if the court is right, or right enough, that the Massachusetts buffer zone went too far in limiting peaceful speech in a public place, this case is the spoonful of sugar in a big bottle of bad First Amendment medicine. Larry, you say that cases like this one “force us to balance competing constitutional values: free speech against the safety and autonomy of women.” But does the conservative majority of the Roberts court really give weight to any value when it’s competing with its self-serving, anti-regulatory conception of the First Amendment these days? Eric and I joked a few weeks ago that it’s time to write a screed called Against the First Amendment. Here’s a quick and dirty version.

All the Ways the Roberts Court Has Mangled the First Amendment

To protect wealthy donors: Striking down part of Congress’ effort at campaign finance reform in the name of the First Amendment, Justice Kennedy made the crazy-making claim in Citizens United that donations to PACs and super PACs that are nominally “independent” from candidates “do not give rise to corruption or the appearance of corruption.” Please. Roberts doubled down on this lunacy in April, to strike another blow to campaign finance reform, in McCutcheon. As you said better than I, Dick, it’s pretty hard to believe that our smart, sophisticated chief justice truly believes that only quid pro quo corruption—essentially bribery—threatens the integrity of the political system enough to justify congressional intervention. Which is what Roberts says in McCutcheon. And why I think he was just laying the groundwork for killing campaign finance reform entirely—a move that will surely prove to benefit Republicans more than Democrats.

To protect corporations: Another Kennedy special: his majority opinion in the 2011 case Sorrell v. IMS Health Inc. At the time, like most journalists, I ignored Sorrell, but I’m repenting. The case started with a Vermont law that prevented drug companies from getting access to information about the prescriptions that doctors write patients. The idea was that pharma was using the prescription information for marketing—to better target doctors for sales pitches. Instead of treating this as a perfectly acceptable reason for regulation, especially given that traditionally, “commercial speech” gets less First Amendment deference, Kennedy treated the law as a form of discrimination against the drug companies. He calls handing over the prescription data to the marketers “a necessary cost of freedom.”

Seriously? As University of Tulsa law professor Tamara Piety writes, in an excellent article, this “is not just wrong, it is dangerously wrong.” Over email, Yale Law School Dean Robert Post writes that “the liberty values that were always implicit in First Amendment jurisprudence have now been transformed by conservative justices into a warrant for libertarian interventions, designed to overturn ordinary commercial regulations. They know that they are doing this. The irony here is that some conservatives initially opposed the extension of the First Amendment to commercial speech until they discovered in the 1990s that it could become an engine to destroy commercial regulations.”

To hurt unions: Harris v. Quinn, due to come down on Monday, is, as The Nation calls it “arguably the most important labor law case the Court has considered in decades,” which has “labor very, very nervous.” For good reason. The case is about whether unions can collect dues from government workers whom they represent in collective bargaining, but who have chosen not to join. In 1977 the Supreme Court said unions could collect dues from such workers to prevent freeloading. At argument, according to Adam Liptak in the New York Times,

Justice Stephen Breyer said there was no good reason to overturn the balance struck in 1977. He said he feared that “the courts of the United States are going to fashion, using the First Amendment as their weapon, a new special labor law for government employees.’ Justice Kennedy, on the other hand, pressed hard on the harm that may be done to workers’ First Amendment rights in the collective bargaining process.

It is a bad sign for unions that Kennedy’s only apparent concern was the “employee who objects to the union’s position on fundamental political grounds.” Also bad, odds are that Alito is writing the majority opinion. Larry, you said you thought Alito might express sympathy for the women going into abortion clinics, because Alito wrote movingly about the father who sued after his son’s military funeral had been beset by hate-filled protesters, in his lone dissent from yet another the First-Amendment-Made-Us ruling. But here’s the thing about Justice Alito: He is awfully selective about whom he expresses feelings for, and they happen to be people who are a lot like him. Women who need abortions and labor organizers are not on that list.

To protect corporations some more: I could write one more doomsday paragraph about the upcoming Hobby Lobby decision, which will probably include lots of conservative pronouncements about why the right to religious freedom of privately owned companies (yes, companies) matters so much more than the right of female employees to health care insurance that covers birth control. Here is Eric’s take. I’ll save mine for Monday. In the meantime, my closing thought comes from my email from Robert Post. “The conservatives are using the First Amendment as a weapon in every way they can,” he argues. They understand that this makes them seem righteous and principled. The protection of free speech, after all, is one of the most cherished American and bipartisan values. But it just cannot be our only value. That’s the wool the court is pulling over our eyes.

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