Constitution Daily

Smart conversation from the National Constitution Center

High court spotlight misses First Amendment

October 2, 2012 by Tony Mauro


The Supreme Court’s fall session begins without any direct First Amendment cases on the argument docket, signaling a possible respite from free-speech and religion cases for the near-to-middle future.

Recent terms of the court have featured numerous free-speech cases involving controversial expression, campaign expenditures and the rights of public employees, as well as occasional forays into both the establishment and free- exercise religion clauses. But not so far this term.

It would be hard to say the absence of First Amendment cases is intentional on the part of the court since, as justices often say, its docket is at the mercy of the petitions that come in the door, and whether those specific cases merit review. And the court’s argument calendar for this term is far from full, so new First Amendment cases could still be added.

But still, some First Amendment scholars say the hiatus may reflect the justices’ general sense that the court’s doctrines on both speech and religion clauses are fairly stable and settled, without major divisions that require repair.

The court has not ruled on a press-freedom case in more than a decade, for example. Media organizations are generally content to leave it that way, with pro-press precedents such as New York Times v. Sullivan firmly in place. And even the fight over campaign finance, which has been the subject of numerous Supreme Court First Amendment battles in recent years, may have run its course for now. In a Montana case decided in June, the court passed up a chance to revisit its controversial Citizens United ruling loosening restrictions on campaign expenditures by corporations.

“Maybe they have free-speech fatigue,” said Notre Dame Law School professor Richard Garnett. “Seriously, though: I am not aware of any speech or religion cases that have granted, or even of any potentially hot-ticket speech or religion petitions that are pending.” Garnett said that may be because, “as I see it, at least in the Religion Clauses context, we have actually … reached a point of relative doctrinal stability and completeness, for better or worse.”

University of Virginia School of Law professor Leslie Kendrick offered another possible explanation. “An argument could be made that the court’s First Amendment docket has been artificially inflated lately,” and it may be returning to normal this term, she said.

In a number of notable recent First Amendment cases — involving restrictions on virulent speech at military funerals, and on violent video games, for example — the court granted review, only to uphold the lower court decision. They are “interesting, eye-catching cases” that invite consensus among the justices, Kendrick said, and have a “pedagogical purpose” of reminding the nation that the First Amendment protects even the most objectionable speech. “It may not be a bad thing if they lay off the First Amendment for awhile,” she added.

Thomas Baker, professor at Florida International University College of Law, said the dearth of First Amendment cases could also mean that the justices “are turning in other directions after having decided some important speech and religion cases the last couple of years. The idea is that they decide some big cases, like the ministerial-exemption case and then back away to allow the lower courts to work out the details.”

The dearth of cases does not mean that First Amendment advocates are totally on the sidelines. In Clapper v. Amnesty International, set for argument Oct. 29, the court will consider who has standing to challenge the expansion by Congress of federal authority to wiretap foreign nationals in national security investigations. The Reporters Committee for Freedom of the Press filed a brief stating that the law could jeopardize newsgathering and the ability of journalists to promise confidentiality to sources. The court last week granted review in Maracich v. Spears, a dispute over drivers’ privacy that could implicate state freedom of information laws. Kirtsaeng v. John Wiley & Sons, a copyright dispute, has drawn amicus curiae briefs from publishers and movie makers.

And on the horizon, several other First Amendment disputes could turn into Supreme Court cases. There are simmering disputes over “net neutrality” and the Food and Drug Administration’s controversial regulations requiring graphic tobacco warnings on cigarette packaging. The court has asked for the solicitor general’s views in Roe v. United States, a knotty dispute over the sealing of court documents in a case involving a government witness. In Agency for International Development v. Alliance for Open Society International, the Court is being asked to reinstate a federal law that requires public health groups receiving federal AIDS funding to pledge their opposition to prostitution.

Tony Mauro is the legal correspondent for the First Amendment Center. This article first appeared on its web site at:

Sign up for our email newsletter