To get the U.S. Supreme Court’s attention these days, try saying your speech rights are being violated.
Whether the underlying topic is abortion, elections, labor unions or wedding cakes, the First Amendment is starting to dominate the Supreme Court’s agenda.
The court on Monday granted three new speech cases, including a challenge to a California law that requires licensed pregnancy-counseling clinics to tell patients they might be eligible for free or discounted abortions. The nine-month term now features six cases, out of 44 total, that turn on the reach of the Constitution’s free speech guarantee.
Several will be among the term’s most closely watched. They include a high-profile fight over a Colorado baker who refuses to make cakes for same-sex weddings and a challenge to the requirement in some states that public-sector workers pay for the cost of union representation. Both of those cases offer the prospect of ideological divides that could put the court’s five Republican appointees in the majority, backing free speech rights.
Free speech also plays a central role in what could be a watershed case involving partisan voting districts. The court’s liberals could join with Justice Anthony Kennedy to allow legal challenges to partisan gerrymanders for the first time. During arguments in October, Kennedy suggested those challenges would be based on the First Amendment’s protections for speech and free association.
The free speech clause has had a special resonance with the court’s conservative wing under Chief Justice John Roberts. The court invoked the First Amendment in the landmark 2010 Citizens United decision, which said corporations could spend unlimited sums on political causes. Writing for the five-justice majority, Kennedy equated federal spending restrictions with using “censorship to control thought.”
The court has also backed speech rights with more lopsided majorities in cases involving violent video games, depictions of animal cruelty, abortion-clinic buffer zones and anti-homosexual protesters.
“The current court interprets the First Amendment more expansively in many ways than it did in the past,” said Rebecca Tushnet, an expert on the First Amendment who teaches at Harvard Law School. Although First Amendment claims have long had more “charisma” than other constitutional claims, “the gap may be getting even bigger,” she said.
“When it comes to free speech, pretty much everybody is an activist,” said David Strauss, a constitutional law professor at the University of Chicago Law School.
Not everyone sees the Roberts court as pushing the free speech clause beyond its established boundaries. Eugene Volokh, a First Amendment scholar at UCLA School of Law, says the latest issues are mostly variations on topics the justices have been debating for decades.
“I’ve heard the argument that somehow the First Amendment is straying into new areas,” Volokh said. “I just don’t see evidence for it, certainly not in this term’s cases.”
In the new California case, a state law requires licensed pregnancy clinics to tell patients that they can call a county health department to learn about state-funded prenatal, family planning and abortion services. The law is being challenged by clinics that oppose abortion.
“The government should never be permitted to coerce speech that it favors over speech that it does not favor,” said Michael Ferris, general counsel for the anti-abortion Alliance Defending Freedom, the group leading the challenge.
California officials say the measure is designed to protect women and regulate the practice of medicine.
The case offers issues that could cut across the court’s ideological divide. The clinics’ arguments resemble contentions made elsewhere against state laws that require abortion providers to show patients an ultrasound or tell them that the fetus can feel pain.
The justices also said Monday they will use a Minnesota case to consider guaranteeing people the right to wear political apparel when they go to the polls to vote. The final case involves a man who says he was arrested in retaliation for suing and politically criticizing his local government.
The court will decide all of the cases by the end of its nine-month term in late June.