Supreme Court’s First Amendment Term by David L. Hudson Jr. Nashville, TN The U.S. Supreme Court’s 2013–2014 term was an important one for the First Amendment and the Roberts Court. This term, the Court continued its pattern of invalidating certain provisions in the Bipartisan Campaign Reform Act and campaign finance reform; limited the reach of an influential but controversial public employee speech decision from 2006; invalidated a state law restricting speech outside abortion clinics; applied qualified immunity to protect Secret Service agents; and addressed a pure Establishment Clause case for the first time in years. Campaign Finance A consistent feature of the Roberts Court has been the systematic dismantling of different provisions of the Bipartisan Campaign Reform Act (BCRA) and campaign finance reform. This term the Court invalidated the so-called aggregation limits in the BCRA, which set limits on the total amount of money a person could contribute to different federal and other political candidates.
Court missed another opportunity to lift itself out of a “halfway house of its own design.” Justice Breyer and his three colleagues warned that the plurality defined corruption too narrowly and ignored that campaign finance regulations “strengthen, rather than weaken, the First Amendment.” The dissenters warned that the “risk of special access and influence remains real” and a threat to democracy. The Court remains deeply divided in this area of First Amendment jurisprudence, and more 5-4 rulings are likely in the near future unless there is a change in the Court’s composition.
Public Employee Speech For many years the Court had a settled approach to public employee First Amendment cases. Public employees first had to show that their speech touched on a matter of public concern or importance, rather than merely being a private grievance. If an employee’s speech touched on a matter of public concern, then the Court The Court’s lineup in McCutcheon v. FEC (Docket No. 12-536) balanced the employee’s right to free speech against the employer’s was a familiar one in this area with the five more-conservative efficiency interests. This was known as the Pickering-Connick test justices—Chief Justice John after the Court’s precedents in Roberts and Associate Justices Pickering v. Bd. of Education, 391 Antonin Scalia, Anthony Kennedy, Chief Justice Roberts refused to address whether U.S. 563 (1968) and Connick v. Clarence Thomas, and Samuel the Court’s seminal campaign finance, free-speech Myers, 461 U.S. 138 (1983). Alito—voting to invalidate the case, Buckley v. Valeo, 424 U.S. 1 (1976), should aggregate limits. The other four The Court changed the game be overruled. This inspired a separate concurring justices— Justices Stephen in Garcetti v. Ceballos (2006), opinion from Justice Clarence Thomas, who for Breyer, Ruth Bader Ginsburg, adding an additional threshold Sonia Sotomayor, and Elena prong to the analysis by creating years has called for Buckley to be overruled. Kagan—voted to uphold the a categorical rule. Under Garcetti, measure. if a public employee engaged in official, job-duty speech, then he or she has no First Amendment Chief Justice Roberts authored a plurality opinion, as he often protection. Under Garcetti, it doesn’t matter how important the seems to do in free-speech cases. He emphasized the idea that speech is or how much corruption the speech exposes, if the speech in political campaigns is a core type of speech the First employee was speaking as an employee rather than as a citizen, Amendment is designed to protect. “If the First Amendment protects then the employee has no First Amendment claim. Some plaintiffs’ flag burning, funeral protests, and Nazi parades—despite the attorneys referred to this phenomenon as being “Garcettized.” profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition,” he wrote. Roberts The Court revisited public employee speech in Lane v. Franks narrowly defined corruption as quid pro quo corruption and noted (Docket No. 13-483), examining the case of a former community that the case involved a challenge to so-called “base” limits—i.e., college official who was fired after he was subpoenaed and gave limits on the amount of money a person can contribute to a specific testimony in a criminal case of a former state representative that candidate or committee—which remain in place. the subpoenaed employee had terminated. The former community college employee sued in federal court, contending that he was fired Chief Justice Roberts refused to address whether the Court’s in retaliation for his firing of the former state representative and for seminal campaign finance, free-speech case, Buckley v. Valeo, his testimony in court. A federal district court in Alabama and the 424 U.S. 1 (1976), should be overruled. This inspired a separate 11th U.S. Circuit Court of Appeals rejected the employee’s claims concurring opinion from Justice Clarence Thomas, who for years based in part on the rule from Garcetti. These courts reasoned that has called for Buckley to be overruled. Justice Thomas continued the employee was acting in his official capacity when he testified in his questioning of whether there should be differential treatment court and was testifying about speech that he learned in his job. for political contributions and expenditures and lamented that the
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