Supreme Court Could Continue First Amendment Charge

The U.S. Supreme Court has seemingly taken it easy on free speech cases after last term’s First Amendment bonanza.

OT 2017—as last term is known by court watchers—had five cases that touched on free speech, all of which were high-profile.

The most explosive was Janus v. AFSCME, in which Justice Elena Kagan accused the 5-4 majority of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

She warned of a future in which “black-robed rulers” would override citizens’ choices.

Decisions like Janus “invite conservative legal activists to keep pushing far-reaching First Amendment claims,” David Gans, of the progressive Constitution Accountability Center, Washington, told Bloomberg Law.

“There are not any cases involving such claims on the Court’s docket for next Term so far,” Gans said.

But there are some waiting in the wings.

And in “the years to come, we are likely to see a new suite of First Amendment claims in the context of unions and labor law, disclosure, and campaign finance,” Gans said.

Next Term

Nearly 10 percent of the court’s docket last term touched on the First Amendment, but so far next term has only one. And the issue is strikingly similar to one the court heard last term, Lozman v. City of Riviera Beach.

At issue in Nieves v. Bartlett is whether probable cause defeats a First Amendment retaliatory claim. That’s nearly identical to the question presented in Lozman.

But the court stressed in Lozman that the inquiry was very fact specific. So Nievesdoesn’t seem like it will break a lot of new First Amendment ground.

There are, however, other hot-button speech cases waiting to be granted by the justices.

Those include:

  • Cosby v. Dickinson, a defamation case against actor Bill Cosby related to rape allegations;
  • Kennedy v. Bremerton Sch. Dist., asking what kind of free speech rights teachers and coaches have while around students. The speech at issue in Kennedy involves a coach’s prayers—in the presence of students—before high school football games.

Compulsory Bar Membership

None of those free speech cases, however, would have the implications threatened by Kagan: slicing down popular legislation via a robust reading of the First Amendment.

But two cases pending before the court have that potential.

Fleck v. Wetch is a challenge to North Dakota’s mandatory bar association requirement for attorneys. Similar to the argument in Janus, the petitioner there says that he can’t be compelled to subsidize speech he disagrees with.

The Supreme Court previously held that compulsory bar membership could be squared with the First Amendment if the “expenditures are necessarily reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services.”

The petitioner argues that the First Amendment landscape has shifted and that the court’s previous ruling should be overruled.

Net Neutrality

The Supreme Court also has before it a series of cases regarding the Federal Communication Commission’s now-defunct net neutrality rules.

Under the Obama administration, the FCC issued an order requiring internet service providers to treat all information the same regardless of the source.

The D.C. Circuit rejected a challenge to that order in 2016.

In refusing to reconsider that decision in front of the full D.C. Circuit back in 2017, the court rejected the suggestion that the First Amendment barred such regulation of internet service providers. Judge Brett Kavanaugh, who President Donald Trump has nominated to the Supreme Court, dissented from the decision not to rehear the case, saying that the First Amendment “bars the Government from restricting the editorial discretion of Internet service providers.”

A finding in line with Kavanaugh’s view would arm internet service providers “with a First Amendment shield against net neutrality obligations,” Judge Sri Srinivasan said.

Several parties petitioned the Supreme Court for review in 2017. But the cases have stalled in the high court, likely due to political developments.

The FCC under the Trump repealed the net neutrality rules in late 2017, and the repeal went into effect in June.

The federal government Aug. 2 asked the high court to vacate the lower court’s ruling as a result.

In May, however, the Senate voted 52-47 to overturn the FCC’s repeal in a resolution under the Congressional Review Act. The resolution is waiting on action in the U.S. House of Representatives.

Should net neutrality supporters succeed in their uphill battle to get the CRA passed in the House, all eyes would turn to the Supreme Court.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com