Does the Roberts Court Have a First Amendment Agenda?

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3 Responses

  1. JKM says:

    Note sure what you’re positing here. Sure, the Roberts Court took on some First Amendment cases. And, by the way, by “First Amendment,” you seem only to mean “free speech.” Anyway, what’s the big deal? You raise the prospect of a vague notion of an agenda. Unhelpful. Can you (or anyone) suggest a possibility or at least a few options as to what that agenda could possibly be?

    Here’s an idea. In Schwarzenegger’s oral argument, Chief Justice Roberts asked a tricky question. He asked one of the parties why the Court shouldn’t just call the video games statute overbroad and end the analysis there, just like the Court did in United States v. Stevens. The question followed a slew of questions indicating that at least four or so justices thought the statute was best characterized as vague.

    It seems that Chief Justice Roberts has it that by using the overbreadth doctrine, the Court can take an easy route towards declaring laws unconstitutional without having to take on the heavy task of analyzing the statute under well-established strict scrutiny doctrine and all that it entails. (Note that in United States v. Stevens, the Third Circuit below used strict scrutiny in order to reach this result.) It also is a way around the special First Amendment exception to the ordinary rule that the Court must find a law unconstitutional in all (or, for some justices, substantially most) its applications in order to strike it down. Instead of having to try to think about all (or most) of the possible applications, Chief Justice Roberts just calls a law overbroad “for now.”

    Commentators characterize the Roberts’ Court as particularly unwilling to declare statutes facially-invalid. Conceivably, Chief Justice Roberts’ aptitude for overbreadth doctrine allows him to declare statutes facially-invalid, because it’s okay because he’s only striking them down “for now.”

    • Alan Chen says:

      Sorry you found my post unhelpful. I thought I actually did suggest a couple of options about what the agenda might be (though I then rebutted them). I guess I was looking for other insights that I might be missing. Your idea is an interesting one, but as you point out, many members of this Court are not fans of facial invalidation. I doubt the fact that overbreadth concerns can be cured by narrowing constructions would make them more open to facial invalidation in the free speech context. Also, curing overbreadth through narrowing constructions can actually heighten concerns about content discrimination because it focuses the statute on a class of speech that the legislature really wanted to censor.

  2. JKM says:

    If you think a narrowed statute heightens censorship concerns, then why do you doubt that a narrowed statute is more open to facial invalidation? (I express no opinion about these propositions; I merely ask why you see them as consistent.)

    What about Holder v. Humanitarian Law Project? In a preliminary injunction posture, Chief Justice Roberts (who also wrote United States v. Stevens) held that the material-support statute, as applied to respondents, would not violate the First Amendment. Holding aside, Roberts did not apply any of the doctrine prior cases would suggest he’d apply. No strict scrutiny analysis, no Brandenburg analysis, no O’Brien analysis, and none of the dicta about the importance of political speech from Citizens United.

    For a Court that cares so deeply about holding out on facial challenges — see also, e.g., Wash. State Grange v. Wash. State Republican Party, and Roberts’ concurring opinion therein — the particular procedural posture in Holder might have well counseled against the Court’s holding. Perhaps Holder could be part of the key to identifying a potential “agenda” of the Roberts Court, or of Chief Justice Roberts’ particular agenda.