The Politics of Freedom of Expression

The Decisions of the Supreme Court of the United States

M. Richards

• Publisher: Palgrave Macmillan
• Year: 2013
• Print ISBN: 9781137277572
• eBook ISBN: 9781137277589
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

The principle of content-neutrality is the cornerstone of freedom of expression jurisprudence, protecting the core values of freedom of speech set out in the first amendment, whilst also enabling the government to place reasonable restrictions on protected speech. The Politics of Freedom of Express i on examines the US Supreme Court's decision-making in freedom of expression cases, from the Earl Warren Court in 1953 to the 2012 decisions of the John Roberts Court, assessing the extent to which the justices take into consideration their own political attitudes, jurisprudence and external factors such as federal government participation. In doing so, the book highlights the role of the civil rights movement in developing the content-neutrality jurisprudential regime.Establishing 'jurisprudential regime theory' as a framework for incorporating the various factors that can affect decision-making, the author draws on quantitative, qualitative and interpretive methods in order to analyse the justices' changing treatment of content-based and content-neutral cases over time. This unique theoretical approach allows the text to push beyond the traditional 'law versus politics' debate in order to critically evaluate the importance of content-neutrality to the Supreme Court's decision-making, and to compare decision-making in the US with Canada, Germany, Japan and the UK.

1

Introduction

Police Department of Chicago v Mosley and Grayned v City of Rockford

For seven months in 1967 and 1968, Earl Mosley carried out a peaceful, quiet and usually solitary protest against racial discrimination in admissions at Jones Commercial High School in Chicago. As he paced the public sidewalk adjoining the school, he held a sign stating: ‘Jones High School practices black discrimination. Jones High School has a black quota.’ His protests at the school came to an end on 4 April 1968, the day before a new Chicago ordinance went into effect. Chicago had prohibited picketing or demonstrating on a public way within 150 feet of a school building during school hours, including half an hour before and after the school day. The ordinance exempted peaceful picketing of a school involved in a labor dispute. Mosley, a federal postal worker, learned about the new ordinance in a newspaper report and inquired of the Chicago Police Department whether the ordinance affected his protest; he was informed that, should he continue, he would be arrested. Mosley’s alternative was to protest across the street from the school, beyond the 150-foot zone. He testified that this method was not particularly effective.

When I was across the street from the school, 150 feet away, you cannot hardly see me. The question that all of the people asked me was, ‘Where is the school located?’ They don’t even see the school across the street, you know. So, what it does, it takes away a certain amount of the effectiveness … [W]hen I am across the street, I am sort of out of the picture. (Police Department of Chicago v Mosley, 408 US 92, 93, 1972)

Frustrated with the limitations imposed upon his freedom of expression by the new ordinance, Mosley challenged the ordinance in the federal district court, claiming the ordinance restricted his first amendment right of expression and violated the equal protection of the laws guaranteed by the fourteenth amendment (Mosley, p. 94).

On 25 April 1969, Richard Grayned was arrested during a demonstration at West Senior High School in Rockford, Illinois. Some of the 200 protesters carried signs explaining their concerns with the school, such as: ‘Black history with black teachers’, ‘Black cheerleaders to cheer too’ and ‘Equal rights, Negro counselors’ as they marched on a sidewalk set back from the street, approximately 100 feet from the school. Other protesters raised their clenched fists, symbolizing ‘Power to the people’ (Grayned v City of Rockford, 408 US 104, 105, 1972). Justice Thurgood Marshall’s opinion for the US Supreme Court indicated that other facts about the protests were in dispute. Witnesses for the protesters testified that they protested in a quiet, orderly fashion, few students came to the windows to watch the protest, police with loudspeakers made the most noise and, overall, the school was not disrupted. One officer testified that the protest was ‘very orderly’ (Grayned, pp. 122–3, Douglas J, dissenting in part). The city’s witnesses contended that hundreds of students came to the windows to watch the demonstration, protesters encouraged students to leave the classrooms and join the protest and tardiness after period changes dramatically increased due to students going outside to observe the protest, all of which disrupted the orderly procedure of the school (Grayned, pp. 105–6).

There was no dispute as to what happened next. The police warned the protesters and then proceeded to arrest 40 of them, including Grayned. Grayned was convicted of violating an antipicketing ordinance identical to the one challenged by Mosley in Chicago. Grayned was fined $25 for the violation, and another $25 for violating an antinoise ordinance that prohibits anyone on grounds adjacent to a school or class that is in session from making a noise or diversion that ‘disturbs or tends to disturb the peace or good order of such school session or class thereof’ (Rockford, Illinois Code of Ordinances, c. 28, 19.2(a), quoted in Grayned, pp. 107–8). Grayned raised facial challenges to the two ordinances, claiming they were vague and over-broad, in violation of the first amendment. He did not contest their constitutionality as applied to him, even though he could have done so, considering that there was no evidence that he protested in a disruptive or noisy manner (Grayned, p. 124, Douglas J, dissenting in part).

The Supreme Court heard oral arguments in the two cases on 19 January 1972 and issued its opinions on 26 June 1972. The Court unanimously agreed that the Chicago antipicketing ordinance and the identical Rockford antipicketing ordinance were unconstitutional, but the Court upheld the Rockford antinoise ordinance by a vote of 8:1, with Justice William Douglas dissenting. What was the critical difference between the two ordinances?

The fatal flaw of the Chicago and Rockford antipicketing ordinances, according to Marshall’s opinion for the Supreme Court, was that they discriminated on the basis of the content of expression. The law treated protesters differently based on the subject matter of their demonstration. By exempting picketing of schools regarding labor disputes from punishment under the ordinances, Chicago and Rockford privileged labor protests over demonstrations involving racial equality or any other subject.

The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor–management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open’. (Mosley, pp. 95–6, quoting New York Times v Sullivan, 376 US 254, 270, 1964)

Marshall quoted from Sullivan, a landmark case involving a libel suit filed by an elected commissioner of Montgomery, Alabama, against the newspaper for publishing an advertisement criticizing the actions taken against student demonstrators and Dr Martin Luther King Jr by Montgomery police and others. Marshall’s reference is but one of the connections between the Supreme Court’s civil rights jurisprudence and the development of modern first amendment jurisprudence, which I explore in greater depth in Chapter 3. In the eyes of Justice Marshall and his Supreme Court brethren, this content control was an affront to both the first amendment and the equal protection clause of the fourteenth amendment. Marshall observed that Chicago’s differential treatment of picketing presented an equal protection clause issue, but that claim was ‘closely intertwined with First Amendment interests’ (Mosley, p. 95).

Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an ‘equality of status in the field of ideas,’ and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone. (Mosley, p. 96, quoting Meiklejohn, 1948, p. 27)

Marshall’s recognition of the connection between the first and fourteenth amendments was a key development in the jurisprudence of freedom of expression because it formalized judicial review of first amendment issues by using prescribed standards of review, a practice which had previously been more commonplace in the context of the equal protection clause. Of course, this was not the first time that the Supreme Court observed that these fundamental principles of freedom of expression and equality were intertwined. In Chapter 3 I explore the essential role that race and the civil rights cases played in shaping the Supreme Court’s free expression jurisprudence. What I wish to emphasize here is that Marshall’s opinions in Mosley and Grayned brought together strands of free expression and equal protection jurisprudence by connecting the principles and by establishing formally different levels of judicial scrutiny for laws depending on whether government discriminated on the basis of content.

Mosley and Grayned established the primary line of inquiry for the Supreme Court’s modern first amendment jurisprudence. The Court inquires whether the challenged law is a content-based or content-neutral regulation. When laws are aimed at the communicative impact or viewpoint of the expression, they are considered content-based and are subject to the strict scrutiny standard of review; these regulations must be the least restrictive means of achieving a compelling state interest, or they will be struck down as unconstitutional. Content-neutral regulations do not explicitly aim at communicative impact or viewpoint. Content-neutral laws are usually time, place or manner regulations, or general regulations that have an incidental effect on speech. Content-neutral laws are judged according to intermediate scrutiny, which requires the laws must not restrict more speech than is necessary to achieve a significant government interest. Lawrence Tribe (1988) described the Supreme Court’s basic free expression jurisprudence as a ‘two-track’ analysis, with content-based laws on track one and content-neutral laws on track two.

The concepts of content-based and viewpoint-based regulations of expression are closely related, but somewhat distinct. Content-based is a broader category and includes viewpoint-based; viewpoint-based discrimination is included within the category of content-based discrimination, but there are some types of content-based discrimination that are not viewpoint-based. In limited public forums, the Supreme Court permits content-based but not viewpoint-based regulations. For example, a public university could choose to host a conference on the constitutionality of gay marriage, which is a content-based decision; it could exclude presenters who wished to focus on the constitutionality of drone strikes against alleged terrorists, as such presentations would not be germane to the purpose of the forum. However, for the same conference, the university could not choose to include only pro-gay marriage presenters, as this would constitute viewpoint-based discrimination. Of course, the line between content-based and viewpoint-based discrimination can be blurred, as I elaborate in Chapters 3 and 6.

The content-neutrality jurisprudential regime

Why does this matter? How would we know if it mattered? For decades, political scientists and legal scholars have attempted to discern the relative influence of law and politics on the decisions of Supreme Court justices. The debate over whether law is fueled by politics has existed since the time of Socrates, if not earlier. In Plato’s Republic, Thrasymachus argued that justice was simply the interest of the strongest; essentially, justice is defined by those in power, and he challenged Socrates to show that justice was something more (Grube, 1974, pp. 336–54). With improvements in computer technology in recent decades fueling the power of software for statistical analysis and increasing the availability of online databases of court opinions, scholars have been examining the classic question of law versus politics in new ways.

In this book, my goal is to understand the extent to which legal and political factors explain how the justices have voted in freedom of expression cases from the start of Earl Warren’s term as Chief Justice in 1953 to the June 2012 decisions of the Supreme Court under the leadership of Chief Justice John Roberts. In particular, I consider the influence of the justices’ political attitudes, the content-neutrality jurisprudence and external factors such as the level of government and type of party involved in the case, as well as friend of the court briefs.

Advocates of the attitudinal model contend that the politics of the justices drive the justices’ decisions. ‘Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he is extremely liberal.’ (Segal and Spaeth, 1993, p. 65) Using a statistical database of every Supreme Court decision, beginning in 1953, Jeffrey Segal and Harold Spaeth (1993) demonstrated that the political leanings or ‘attitudes’ of the justices effectively predict how they vote. The attitudinalists have even gone so far as to claim that attitudes are the only systematic factor that explains how the justices vote (Segal and Spaeth, 1994, p. 11). In effect, they claim that law matters little to the justices. Although they conceded that, at times, the justices voted based on legal precedent, the frequency is ‘so low that only … preferential models … appear to be in the right ballpark’ (Spaeth and Segal, 1999, p. 288).

In my view, the justices do act based on their attitudes, but the attitudinal model is too simplistic. In a 2002 article, Herbert Kritzer and I proposed a new way of conceptualizing the role of law in explanations of Supreme Court decision-making, which we call jurisprudential regime theory. A jurisprudential regime is ‘a key precedent, or a set of related precedents, that structures the way in which the Supreme Court justices evaluate key elements of cases in arriving at decisions in a particular legal area’ (Richards and Kritzer, 2002, p. 308).

Law is not a mechanical construct dictating the outcome of cases for the justices. The influence of law on Supreme Court decision-making is best considered from a neoinstitutional perspective, which encompasses both interpretive (Smith, 1988; Clayton and Gillman, 1999) and rational choice (Epstein and Knight, 1998) approaches, as I elaborate in Chapter 2. Law, like other institutions, is created by actors (justices) with policy goals (attitudes) whose subsequent decisions are then in turn influenced but not determined by the institutional structure they have created. Martin Shapiro’s early work on political jurisprudence recognized that there is room for both law and politics in explanations of the Supreme Court (Shapiro, 1964; 1968). As Kritzer and I noted: ‘Leaving jurisprudence out of the analytic framework fails to recognize both the distinctive nature of courts and the theoretical point that ideas and institutions matter.’ (Richards and Kritzer, 2002, p. 306) Jurisprudential regime theory builds on neoinstitutionalism by theorizing that attitudes, jurisprudence and strategic considerations all play a role in Supreme Court decision-making.

In this book I apply jurisprudential regime theory to freedom of expression, based on a dataset I constructed from coding all cases that raised a free expression issue from 1953 to 2012. My goal is to explain why the justices vote as they do in free expression cases. According to the two levels of review established by Mosley and Grayned in 1972, I observe several patterns in how the justices vote. First, attitudes played a prominent role in the justices’ decisions; this finding was not conditioned by the regime. Second, the justices were more likely to strike down content-based laws after the regime was established, because the Supreme Court was applying strict scrutiny. Third, after 1972, the justices were more likely to uphold content-neutral laws than content-based laws, because the justices applied a more lenient standard of review to content-neutral attempts to regulate speech. Fourth, although intermediate scrutiny is a more lenient standard of review than strict scrutiny, the application of intermediate scrutiny in 1972 was more protective of speech governed by content-neutral laws compared to the high level of deference the justices afforded such laws before 1972. As a result, the justices were more likely to uphold content-neutral laws before 1972 than they were after the standard of review was established. The observed statistical pattern fits quite well with the observations made by a prominent first amendment scholar, Kenneth Karst, a few years after Mosley and Grayned were decided, who noted Mosley is a landmark precedent that declares a ‘principle of major importance’. This principle ‘requires courts to start from the assumption that all speakers and all points of view are entitled to a hearing, and permits deviation from this basic assumption only upon a showing of substantial necessity’ (Karst, 1975, p. 28, quoted in Shiffrin and Choper, 1996, p. 393). I refer to this principle and the cases which established it, Grayned and Mosley, as the content-neutrality jurisprudential regime.

Contemporary relevance of the content-neutrality jurisprudential regime

Skeptics may wonder whether a jurisprudential regime established in 1972 still has relevance today. In fact, the reach of the content-neutrality regime is quite extensive and the justices continue to use it, as illustrated by the justices’ reasoning in several recent, controversial decisions. Citizens United v Federal Election Commission (130 S. Ct 876, 2010) was an incredibly controversial, divisive decision in which the Supreme Court, reflecting attitudinal divisions with a 5:4 vote, overturned a section of the Bipartisan Campaign Reform Act of 2002 (BCRA) because the majority saw it as a form of content-based discrimination against the right of corporations to fund independent political broadcast advertisements. Interestingly, Justice John Paul Stevens, dissenting, still applied the content-neutrality framework but found this section of the BCRA permissible. In Brown v Entertainment Merchants Association (131 S. Ct 2729, 2011), the Supreme Court struck down California’s attempt to regulate ‘violent’ video games, by a vote of 7:2. California had attempted to bypass the content-neutrality regime by arguing that violent, interactive speech targeted at children was outside the first amendment, ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of Cases
• List of Tables and Figures
• Acknowledgments
• 1 Introduction
• 2 Jurisprudential Regime Theory
• 3 The Content-Neutrality Jurisprudential Regime
• 4 Statistical Methodology and Results
• 5 The Changing Treatment of Content-Based Cases
• 6 The Contours and Limits of the Content-Neutral Cases
• 7 Conclusion
• Bibliography
• Index