4

FREEDOM OF SPEECH: SEX, LIES, AND VIDEO GAMES

Throughout the late 1960s, the justices of the Supreme Court spent at least one day each year in the basement watching porn together. By all accounts, it was fantastically awkward. Unable to define “obscenity” but convinced that the First Amendment couldn’t protect unduly dangerous and morally corrupting expression, the Court was forced to create constitutional law one sex scene at a time.

These films ranged from scientific documentaries to the improbable escapades of lesbian nymphomaniacs. Justice Thurgood Marshall, a civil rights hero, took merciless pleasure in narrating the clips for the special benefit of Justice John Marshall Harlan II, an elegant former Wall Street lawyer who was by then losing his eyesight. Mocking Justice Potter Stewart’s insistence that “I know it when I see it,” clerks would call out in the dark, “I see it, I see it!” In 1968, some twenty years after serving in the U.S. Navy, a still youthful Stewart reflected on more adventurous times and confided in a particularly curious clerk that he had indeed seen it: “Just once, off the coast of Algiers.”1

For years, the justices struggled to explain what made frank depictions and descriptions of sex dangerous. What was so harmful about obscenity? At what point, or with what body part, did a book or film land outside the First Amendment? The Court’s logic fluctuated wildly from case to case. Such instability is uniquely troubling for free speech because excessive uncertainty about the limits of the criminal law can chill even innocent expression.2

Conventional wisdom tells us that these dark days of uncertain free speech law are long gone. Editorials regularly praise the Roberts Court for its unwavering dedication to free speech.3 Floyd Abrams, a renowned First Amendment attorney, explains that “it is unpopular speech, distasteful speech, that most requires First Amendment protection, and on that score, no prior Supreme Court has been as protective as this.”4 Rarely does an American stand silent or speak in whispers for fear of punishment. Liberty towers above all other values. Or so the story goes.

This picture obscures more than it reveals. Forty years ago, the Court failed because it couldn’t reliably define the First Amendment’s limits. Today, the Roberts Court risks a different kind of misstep. On the one hand, it has rigidly adhered to categorical rules that broadly protect certain kinds of speech but occasionally undermine core First Amendment values by protecting speech that really is harmful enough to justify restrictions. On the other hand, even as it insists that those rigid rules are necessary to protect speech, it has displayed a taste for flexibility while creating new gaps in the First Amendment’s canvass. Thus, even as it takes liberty too far in some cases, in others it seems openly skeptical of claims to First Amendment freedom. These rulings reveal a Court divided over its vision of why and how we should protect speech.

In short, there is more to the Roberts Court’s First Amendment cases than meets the eye. The Court’s voice booms forcefully when it vindicates borderline free speech claims, marginalizing the other values at stake in those cases. Meanwhile, much more quietly, it denies protection to some of those who most need its help to share in America’s rich First Amendment tradition. The culprit is an approach that too rigidly categorizes certain speakers or types of speech as either completely protected by the First Amendment or barely protected at all—and that prevents the Court from candidly acknowledging its role in reshaping our liberties.

This tale of free speech has much in common with America’s long, complicated love affair with the First Amendment. And it points the way to a future in which fundamental questions about what it means to protect free speech are hotly disputed in the Roberts Court.

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Speech is powerful. It’s the lifeblood of democracy, a precondition for the discovery of truth, and vital to our self-development. But speech is also dangerous. It can corrupt democracy, enable or incite crime, encourage enemies, and interfere with government. It can be wielded as a weapon and deployed against unwilling targets. Some speech, like pornography involving children, is created by inflicting terrible harm on innocents. Whole forests have been sacrificed to learned tomes that try to balance these benefits and perils.5 Yet the First Amendment is no complex work of theory. It spends only ten words establishing one of our most important rights: “Congress shall make no law … abridging the freedom of speech.”

Americans have built a vast edifice atop this brief command. Our commitment to protecting even dangerous speech is exceptional.6 It sets us apart from other democracies in ways that sometimes leave them mystified, and on occasion it triggers riots in foreign capitals. But this wasn’t always true. Our history is replete with examples of suppression, much of it sanctioned by the courts. The robust protection that we now afford to speech is the product of what lawyers call a common law process, in which the courts, in dialogue with each other and American society, shaped and reshaped the rules by which we live.7

It’s easy to overestimate the guidance provided by the apparently airtight constitutional text. Absolutists ask, “What is it you don’t get about the words ‘no law’?” In their view—famously championed on the mid-twentieth-century Court by Justice Hugo Black8—the First Amendment is plenty clear about the scope of its prohibitions.

The absolutist stance provides potent rhetoric but weak analysis. “Speech,” for instance, is not a self-defining term. It doesn’t self-evidently include silent films, virtual reality simulations, or abstract art, let alone the decision to protest with a burning cross, a black armband, or an anti-gay jacket. Lots of conduct expresses a message; does the First Amendment cover people who publicly urinate on courthouses to protest injustice?

Then there is the matter of “abridging” speech. Does any restriction on free speech qualify as an abridgement? Surely it would be crazy to invalidate any law that might adversely affect speech. After all, the federal income tax leaves us with less money to spend broadcasting our views. The trademark and copyright laws protect intellectual property by limiting speech. Laws against extortion and blackmail prohibit certain uses of words. And the classic question about free speech still holds: what if you falsely scream “Fire” in a crowded theater?

Finally, the text says that we can’t abridge the “freedom of speech.” Does that “freedom” necessarily include hateful invectives shouted in another’s face? Holocaust denial? Speech designed to undermine democracy itself?

Asking what the framers of the Constitution thought or what the public understood at the time the document was written and ratified is not very helpful when it comes to freedom of speech.9 When the First Amendment was adopted, in 1791, it was widely understood to prohibit mainly “prior restraints” on speech, such as an insistence on preapproval of published works.10 The government generally remained free to punish speech with a “bad tendency” to endanger public morals, health, welfare, or security. This rule was used to justify many limits. A lot of expression that we now protect—including scandalous art, advertisements, religious blasphemy, frank expressions of sexuality, and even some political commentary—could be prohibited if we were strict originalists.

To avoid these results, originalists often recast the original understanding in broader terms, trying to identify principles the public understood the First Amendment to embody. Of course, they must then explain how expansively we can define those principles and how to translate them into the modern world. That inquiry, in turn, usually defeats one of the supposed virtues of originalism: well-defined historical limits that control constitutional interpretation and prevent subjective judgments.

Moreover, Americans have always struggled over free speech.11 Soon after the nation ratified the First Amendment, the Federalists who controlled Congress passed the Alien and Sedition Acts to punish dangerous speech and antagonize Thomas Jefferson’s opposition party.12 In the 1830s, the North and South clashed over Southern laws that made abolitionist speech a capital offense.13 During the Civil War, Abraham Lincoln invoked his emergency powers as Commander in Chief to suppress dissident expression.14 Matters grew worse in the 1880s and 1890s; our Gilded Age triggered a wave of new laws that empowered prosecutors to combat the “abuse” of speech rights by anarchists, socialists, immigrants, free lovers, and unions.15 This pattern continued well into the early twentieth century.16

Most American citizens, of course, have enjoyed robust speech rights throughout our history. But until the mid-twentieth century, certain groups outside the mainstream risked deportation, persecution, and imprisonment when they expressed unpopular messages. During World War I, Woodrow Wilson relied on this absence of strong constitutional protections to persecute pacifists, anti-war demonstrators, and political opponents.17 The Court repeatedly upheld Wilson’s campaign of suppression, but a faction of the legal elite revolted and began to articulate a modern vision of free speech.18

This modern view was championed on the Court in the early twentieth century by two of our most brilliant justices: Oliver Wendell Holmes Jr. and Louis D. Brandeis. Grounded largely in the pragmatic belief that truth emerges from a market of ideas, a fear of government suppression, and a commitment to protecting democracy, this approach to free speech eventually sank deep roots on the Court.

In his most famous opinion, Holmes articulated a core principle of modern First Amendment law: the best way to root out bad ideas is to force them to survive on their own, not for government to ban them.19 As Holmes put it, “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”20 “We should be eternally vigilant,” he elaborated, “against attempts to check the expression of opinions that we loathe and believe to be fraught with death.” Both an act of faith and an empirical claim, this ideal remains enormously influential. It enjoys pride of place in modern legal thought, alongside Brandeis’s argument that free speech is vital to democratic self-governance: “Those who won our independence,” he instructed, “believed that the final end of the State was to make men free to develop their faculties … They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”21

By 1943, at the height of World War II and after more than a decade of dramatic development in free speech doctrine, Justice Robert H. Jackson captured the insurgent wisdom when he struck down a law compelling mandatory flag salutes—and added his own poetic twist in emphasizing individual conscience: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”22

The Cold War, however, reignited calls for suppression amid palpable danger.23 In 1951, the Court sharply shifted its emphasis by asking whether “the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”24 The Court then repeatedly “balanced” the value of communist speech against the danger of radical revolution—solving an impossible equation to limit free speech in a world darkened by fear.

The Court fully embraced robust protections of free speech only in the 1960s and ’70s, when famous cases arose from efforts to conceal the Pentagon Papers, silence Vietnam War protesters, crush the civil rights movement, and suppress the sexual revolution.25 The battle-scarred justices of that era chiseled a broad view of First Amendment liberty into constitutional law. As with its case-by-case attempt to define obscenity, the Court did not always live up to the promise of the values it espoused. But those justices, including William O. Douglas, Hugo L. Black, and William J. Brennan Jr., did more than any of their predecessors to transform into constitutional dogma the ideals we now know well—many of which first took shape in dissents by Holmes and Brandeis. Although free speech doctrine has evolved in significant ways since then, it is no exaggeration to say that we live in the free speech world that those justices forged from fragments of text and history, their own experiences, and some bold ideals.

Adhering to customs of judicial rhetoric, the Roberts Court’s free speech rulings tend to sideline this messy history of judge-made law. Instead, the justices are deliberately selective in their collective memory. When they talk about the framers, they often borrow mythical narratives that their predecessors fabricated decades ago to justify doctrinal innovation—narratives like this one from 1927:

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.26

Here we see Brandeis, writing at the peak of his powers. In his soaring rhetoric, the framers are cast in a suitably modern light and gifted with all the right values: courage in dark times, faith in democracy, trust that truth can defeat falsehood, and an abiding love of liberty. This is an inspiring tale. It tells us why we protect speech and offers a model of American citizenship. The story isn’t very strong on specifics, but the gist is clear: protect a lot of speech and look skeptically on claims that any particular speech is too dangerous. To this day, stories like Brandeis’s help anchor the Court’s account of First Amendment rights.

Whatever their drawbacks as accounts of what really happened in the 1790s, these stories offer valuable lessons. And nowhere are those insights more vital than in cases involving vulnerable members of our society or dissenters from the ideological mainstream. It’s easy to protect speech with which we agree and speakers who look like us. When speech seems dangerous or valueless, however, and the speaker doesn’t seem like the kind of person we should protect, our First Amendment beliefs face a true test. Those are the cases that force us to return to first principles.

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Modern free speech doctrine was forged in the crucible of two world wars, the Red Scare, the Cold War, and conflicts in Vietnam and Korea. One of its most resonant lessons is that the stress of wartime can seduce us into equating speech by activists at home with the genuine threat posed by enemies abroad; thus, opinions upholding censorship during World War I and the Red Scare are now regarded as errors to avoid. In contrast, cases vindicating the rights of pacifists, protesters, and journalists are celebrated as triumphs of principle—including a Vietnam War case in which a protester in a courthouse wore a jacket emblazoned with the words “Fuck the Draft.”27

Given the Roberts Court’s strong free speech reputation, one might have expected it to boldly reaffirm the continuing vitality of this national commitment in our age of terror. On June 21, 2010, however, it did just the opposite.

Four months earlier, the Court heard argument in Holder v. Humanitarian Law Project (HLP), a case testing the federal law that bans provision of “material support or resources” to any terrorist group.28 This law mainly targets assistance to terrorists in the form of money, supplies, and weapons. HLP was brought by American human rights activists who wanted to assist the humanitarian and nonviolent political activities of two groups: the Kurdistan Workers’ Party, which seeks an independent Kurdish state in Turkey, and the Liberation Tigers of Tamil Eelam, who seek an independent Tamil state in Sri Lanka. Both groups had bloody histories, including massacres of civilians, and had been designated foreign terrorist organizations by the Secretary of State.

Fearing criminal prosecution and imprisonment if they rendered assistance, the activists sought a ruling to protect their peaceful activities from the material support law. In the activists’ view, this was a simple case: they wanted to train people in how to petition for relief before the United Nations, use international law to resolve disputes, present claims for tsunami-related aid, and negotiate peace treaties. Surely, they insisted, this political expression—designed not to facilitate violence but to discourage it—fell within the First Amendment’s compass.

The Department of Justice disagreed. At argument, with the justices arrayed before her, then–Solicitor General Elena Kagan opened with the government’s most effective trump card: the law criminalizing “material support,” she declared, “is a vital weapon in this nation’s continuing struggle against international terrorism.” Kagan proceeded to challenge the activists’ contention that support of peaceful activities and support of terror-related activities could be neatly distinguished. Any support to a terrorist organization might aid the whole entity, she explained, since money and skills are transferable: “Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs. That’s the entire theory behind this statute, and it’s a reasonable theory.”

Writing for the Court, as he so often does in First Amendment cases, Chief Justice Roberts agreed that the theory was reasonable enough. So did five of his colleagues: Justices Stevens, Scalia, Kennedy, Thomas, and Alito. Support of any kind could free up resources to be used for terrorism, Roberts speculated. Assistance from American human rights activists, moreover, could “help lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds.” Because the case involved “sensitive and weighty interests of national security,” a field in which the Court lacked expertise, Roberts thought that “respect for the Government’s conclusions is appropriate.” The Executive Branch agencies with a detailed knowledge of the relevant facts had concluded that the activists’ speech could cause the kind of harm that Congress sought to prevent with its material support statute. That was enough for Roberts.

To be sure, this is a powerful argument. But it must have its limits. In dangerous times, the political branches often overreact to innocent speech. Moments of crisis therefore demand careful scrutiny of Congress’s assumptions by a branch of government unconcerned with reelection and charged with special solicitude for civil rights. Absent such probing scrutiny, liberty may be too readily lost to paranoid fears, political agendas, or a desire by the political branches to protect themselves against accusations of being insufficiently aggressive. In fact, judicial trust in the political branches at times of crisis has sometimes led the nation to catastrophe.

Most ignominiously, in a case that arose during World War II, Korematsu v. United States, the Court deferred to government assertions that the forced relocation of Japanese-Americans across the West Coast to internment camps was essential to national security.29 Its opinion in Korematsu was wrong for many reasons, but one of its main errors was uncritical faith in factual claims by government lawyers about the threat posed by Japanese-American spies and saboteurs—claims that flatly contradicted confidential reports by high-level military and intelligence officials, and that were deliberately misrepresented to the Court by the Department of Justice.30 While the Court undoubtedly owes the political branches a substantial measure of deference, out of respect for both their constitutional role and their expertise, that deference can go only so far.

In HLP, the Court embraced a narrow view of its own role in evaluating the justifications for a speech-restrictive law. It did not simply defer to a questionable finding of fact by Congress or the Executive Branch about the dangers of speech; rather, it didn’t require any factual findings at all. Acknowledging that “whether foreign terrorist organizations meaningfully segregate support of their legitimate activities from support of terrorism is an empirical question,” Roberts conceded that Congress hadn’t offered “concrete evidence” that the activists’ proposed speech posed any threat. But this was okay, he argued, because “the Government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions.” He was willing to accept the “informed judgment” of the Executive Branch.

This reasoning suggests that in national security cases, Congress and the Executive enjoy a form of super deference that can paper over notable empirical gaps in their justifications for limiting speech. In the future, HLP will therefore make it much harder to challenge national security laws on First Amendment grounds, as courts take a narrow view of their role in testing the strength of the government’s factual claims. This part of the HLP opinion was all the more remarkable given that the Court implied that it was using “strict scrutiny”—normally the least forgiving form of judicial review.

In a muscular dissent, Justice Breyer, joined by Justices Ginsburg and Sotomayor, charged the majority with abdicating the judicial role. This was a case about political speech, the very stuff of democracy. Some of that speech was directed at Americans, placing it at the heart of the First Amendment. The activists had advocated nothing lawless or violent. As a result, Breyer concluded, censorship required weighty and precise justification.

In Breyer’s view, the government fell far short of that standard. He did not see it as obvious that peaceful advocacy skills were “fungible” or that the terrorist groups would otherwise have paid for training in international law. “The Government,” he remarked, “has provided us with no empirical information that might convincingly support [its] claim.” Instead, it offered only “highly general support” in the form of evidence that the provision of goods and money to terrorists would pose a threat—proof that said little about the supposed dangers of training in United Nations petitions. Whereas Roberts called for deference, Breyer highlighted “the Court’s own obligation to secure the protection that the Constitution grants to individuals.”

Breyer also assailed Roberts’s claim that “support” in the form of political speech can be banned to ensure that it does not “legitimize” terrorist groups. Because “speech, association, and related activities on behalf of a group will often, perhaps always, help to legitimate that group,” he reasoned, the Chief’s logic could mean that “the First Amendment battle would be lost in untold instances where it should be won.” By Roberts’s reasoning, even if a respected domestic organization merely praised a terrorist group, the organization would help “legitimate” the terrorists and could thus raise national security concerns. While Roberts limited his logic to “coordinated” support between Americans and terrorist groups, Breyer warned that the government’s case against conferring “legitimacy” was a slippery slope.

Ultimately, Breyer’s dissent in HLP marked the treachery of “arguments that would deny First Amendment protection to the peaceful teaching of international human rights law on the ground that a little knowledge about ‘the international legal system’ is too dangerous a thing.” Innocent speech, he noted, can always be put to evil use. Yet we rightly allow a veritable deluge of potentially dangerous speech, requiring strong evidence of imminent danger before banning it.

As the landmark Roberts Court case about free speech in wartime, HLP sends a clear signal: judges must defer, and then defer again, to the government when it seeks to justify bans on speech. So long as the “informed judgment” of the government, some fact-finding on the general subject, and abstract reasoning all support the censorship as a tool against terrorism, it may well survive review. While judicial second-guessing of the political branches is always perilous in international conflicts, HLP elevates that concern to a new level. As a result, HLP will likely marginalize the Judiciary in protecting free speech in the national security field for many years to come.31

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Not all threats to free speech implicate weighty matters of national security. Some are simpler and more mundane and affect populations whose rights it’s easy to forget about. But those are exactly the cases that cast revealing light on our beliefs about the First Amendment.

Introduced in 2000, Pennsylvania’s Long Term Segregation Unit (LTSU) was reserved for the most dangerous prisoners. Inmates were denied access to newspapers, magazines, and photos, locked in their cells twenty-three hours a day, allowed only one visitor each month, banned from all use of phones, and forbidden to watch TV or listen to the radio. They were limited to minimal correspondence and reading material. Good behavior could result in transfer to a slightly less restrictive unit.

To many outside observers, these conditions were exceptionally and unjustifiably punitive. In 2009, Atul Gawande made a forceful case in the New Yorker that long-term solitary confinement—which, he noted, often drives inmates mad—should be considered a form of torture.32 In 2012, the Nation discussed the LTSU and other segregated units in an essay whose title posed a troubling question: “Why Are Prisoners Committing Suicide in Pennsylvania?”33

Ronald Banks, an LTSU inmate, sued Pennsylvania in 2001. He charged that the ban on newspapers, magazines, and photographs violated his First Amendment rights. When Beard v. Banks reached the Court five years later, Pennsylvania offered a grab bag of justifications for its rule.34 Its main point, though, concerned the social psychology of behavior modification: this deprivation, the state argued, encouraged inmates in the LTSU to improve and discouraged other inmates from engaging in behavior that would land them in the LTSU. No single opinion held a majority of the Court, but six justices voted for Pennsylvania.

Thomas, joined only by Scalia, expressed a view that, in practice, would leave prisoners with almost no constitutional rights at all. This narrow view of prisoners’ rights dates back to Thomas’s earliest days on the Court and initially scandalized left-leaning commentators; in response to one of his first rulings on the subject, the New York Times pejoratively called Thomas the “youngest, cruelest Justice.”35 His skepticism of inmate rights reflects a firm belief that the Eighth Amendment, which prohibits “cruel and unusual punishment,” affords the states vast leeway to define conditions of incarceration. So long as those conditions don’t violate the Eighth Amendment itself, he maintains, they are permissible.36 Unimpressed by the Court’s unsteady effort to identify a middle ground for inmate rights, Thomas warned in Beard that “judicial scrutiny of prison regulations is an endeavor fraught with peril.”

Breyer, who is often inclined to defer to technical expertise, spoke for the rest of the majority. He ruled against Banks on the ground that Pennsylvania’s behavior-modification logic justified its severe restrictions on First Amendment rights. Breyer characteristically emphasized the “professional judgment” and “experience-based conclusion[s]” in play. Persuaded by the Pavlovian logic of a deprivation scheme that encouraged good behavior and discouraged backsliding by using rights as both carrots and sticks, he scolded a lower court for imposing “too high an evidentiary burden” on Pennsylvania. Ultimately, Breyer thought that it would be unfair to require more than coherent logic and a dash of experience-based evidence to justify substantial limits on First Amendment rights in prison.

This view represents the flip side of his HLP dissent, where he thought logic and some informed judgment fell short. Part of the explanation for this switch is doctrinal: the burden for limiting First Amendment rights in Beard was less demanding because the case involved inmates. But part of it is personal: Breyer usually feels more at ease deferring to technocrats than to politicians. That sentiment, linked to his own background as a member of the United States Sentencing Commission, may explain Breyer’s allowance of stronger deference to the state in Beard.

Breyer’s opinion in Beard was hardly radical. It extended decades of Supreme Court precedent holding that inmates have far fewer constitutional rights than the rest of us—and that the rights inmates do enjoy are significantly watered down.37 Nonetheless, it did extend that doctrine, and did so at the expense of free speech protections for prisoners by deferring to questionable justifications for censorship offered by Pennsylvania’s prison administrators.

Castigating the Court for ignoring its duty to ensure that inmates receive ethical treatment, Stevens—joined by Ginsburg in dissent—decried this transformation of First Amendment freedoms into an elaborate psychology experiment. In his view, the state’s strict policy struck at “First Amendment rights to receive, to read, and to think.” Its most worrisome danger was the lack of any plausible limiting principle. What other rights may prisons strip away in an effort to rehabilitate? Marriage? Religious liberty? After all, wrote Stevens, “the more important the constitutional right at stake (at least from the prisoners’ perspective), the stronger the justification for depriving prisoners of that right.”

Worse, he wrote, Pennsylvania’s rule verged “perilously close to a state-sponsored effort at mind control.” Stevens explained, “The complete prohibition on secular, nonlegal newspapers, newsletters, and magazines prevents prisoners from receiving suitable access to social, political, esthetic, moral, and other ideas, which are central to the development and preservation of individual identity, and are clearly protected by the First Amendment.” Of course, prisoners are frequently deprived of important rights. But the rights to read and think are so fundamental to our humanity, Stevens argued, that the Court must require a particularly well-substantiated governmental justification for their denial. To a technocrat, the use of rights as behavior-modifying bargaining chips might seem the epitome of logic. To a humanist, it signals our collective descent down a frightening path.

To ward off such tyranny, Stevens called for “especially cautious” review of deprivation-based prison policies. He clearly believed that Pennsylvania flunked such analysis. Given the presence of many other incentives for rehabilitation, the absence of any real empirical evidence of the policy’s success, and data showing that over 75 percent of prisoners never left the LTSU, Stevens argued that Pennsylvania’s denial of First Amendment rights was indefensible.

Only Stevens and Ginsburg, though, rejected Pennsylvania’s logic. Only they refused to accept the dark irony of cloaking in the mantra of rehabilitation the prison’s decision to deny these men and women access to materials essential to psychological self-development. Here, as in HLP, a majority of the Roberts Court invoked a rule of deference to the government and mightily weakened free speech for a whole class of people—in this case, a class for whom few might feel much sympathy, and thus a class in particular need of judicial protection.

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Justice Brandeis famously described free speech as an essential part of democratic self-government. He was right for many reasons, one of them being the role of free speech as a vital mechanism of accountability. The Roberts Court, though, has stripped speech protections from many public employees who are uniquely well positioned to convey to the public valuable information about government institutions.

In 2000, a Los Angeles prosecutor named Richard Ceballos suffered workplace retaliation for carrying out his professional duties as he understood them. Ceballos disclosed to a defense attorney—and testified at trial—that he had discovered serious misrepresentations in a search warrant crucial to a criminal prosecution. In his view, these disclosures of misconduct were ethically required after his superiors refused to take action. For his troubles, Ceballos was denied a promotion and transferred, which prompted him to file a suit alleging retaliation. At the time, the First Amendment protected public employees with a balancing test: does the value of the speech to the employee and society outweigh its harm to the government?38

This test was a major improvement on the Court’s early brush with free speech claims by government workers. Justice Holmes, during his time on the Massachusetts Supreme Judicial Court and prior to his libertarian turn, summed up conventional wisdom in 1892: “[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”39 Public employees simply had no protections against being fired for their beliefs.

In the 2006 case Garcetti v. Ceballos, a bare majority of the Court took a step back toward that world.40 Kennedy’s opinion fashioned a new rule: when public employees speak as “citizens,” they retain full First Amendment rights, but when they speak within the scope of their official responsibilities, their speech falls entirely outside the First Amendment. Kennedy made a strong argument for this innovation, emphasizing that public employers require discretion to manage staff entrusted with the authority to speak for the government: “Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission.… If Ceballos’ superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action.”

In dissent, Stevens went straight for the linchpin of Kennedy’s logic: “The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.” In his view, it was “senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description.” It was passing strange, Stevens remarked, that Ceballos could air his concerns in an op-ed in the Los Angeles Times but not in a court of law to safeguard the constitutional rights of the accused.

Justice David Souter, who retired from the bench three years later to return home to his beloved New Hampshire farmhouse, also assailed the majority’s logic. He emphasized that, regardless of a government paycheck, employees retain a natural interest in sharing ideas—and the public enjoys a vital interest in hearing their considered thoughts, especially on matters about which they are the most knowledgeable. The balance between these values and bureaucratic efficiency shouldn’t be resolved by a rule that denies to public servants the “poet’s ‘object … to unite my avocation and my vocation.’” (Souter, a consummate New Englander, borrowed here from Robert Frost.) His dissent also warned that, without strong whistleblower protections for employees who reveal corruption, we will all suffer from less accountability in government.

In Garcetti, public employees lost some of their First Amendment freedom to share uniquely well-informed views with the public. This result was driven mainly by an understandable concern that such speech is dangerous because it can harm government efficiency. In most cases, after all, silencing a squeaky wheel is easier than replacing it, and employers are undoubtedly entitled to a measure of control over their staff. Indeed, for government employees who, like Ceballos, speak and write for a living, employer judgments about the quality and appropriateness of their speech are inevitable and will often be legitimate. Still, as a case that creates a general rule, Garcetti heavily weighted the scale in favor of preventing these perils of employee speech—and largely dismissed its social and individual worth. The result is that other constitutional values, including employee speech rights, public accountability, and transparency, were relegated to the sidelines.41

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“BONG HiTS 4 JESUS” reached the Roberts Court in 2007. The case, Morse v. Frederick, began when Joseph Frederick, an adventurous high school senior, displayed a fourteen-foot banner bearing the words “BONG HiTS 4 JESUS” while the Olympic Torch Relay passed outside his school in Juneau, Alaska.42 Principal Deborah Morse saw a pro-drug message and demanded that Frederick remove the banner. Frederick refused and was suspended. He promptly filed suit.

Morse involved wonderfully bizarre facts and sparked intense interest on the Court. Nobody really knew what the sign meant or why Frederick had waved it. At argument, Kennedy asked about “Rape Is Fun” signs and Scalia suggested “Extortion Is Profitable” banners. Souter wondered how disruptive it would really be “if the kids look around and they say, well, so-and-so has his bong sign again … [and] they then return to Macbeth.” Morse had all the makings of a one-off case—and yet it prompted five heated opinions and dramatically limited student speech rights.

Speaking for a bare majority of the Court, Roberts concluded that Frederick had to lose because school officials may “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” This conclusion, in his view, followed from cases limiting in-school student speech rights—and from cases effectively creating a Constitution-free zone around any facts involving drugs in schools. Displaying his preference for narrow, careful rulings, the Chief then devoted several pages to downplaying the significance of his own decision: “Stripped of rhetorical flourishes … [this case] is less about constitutional first principles than about whether Frederick’s banner constitutes promotion of illegal drug use.” Morse was an easy and fact-bound decision, he insisted, adding that there was no need to sound “the First Amendment bugle.” Most of his colleagues, however, disagreed.

Inspired by the topic, and ever willing to venture off alone in the name of originalism, Thomas wrote a lengthy historical essay to prove that students have no First Amendment rights at all: “In the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed.” Mocking the Court’s more nuanced rule, which “says that students have a right to speak in schools except when they do not,” Thomas argued that the Judiciary should let democracy determine school policies. Unhappy parents, he pointed out, can always move, switch to a private school, or seek redress before school boards. There was no need for judicial intervention. Thomas concluded with a swipe at young Frederick: “To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to surrender control of the American public school system to public school students.”

Disturbed, Alito drafted a sharp response to Thomas. Whereas Thomas claimed that public schools act in loco parentis (in place of parents), Alito warned that “when public school authorities regulate student speech, they act as agents of the State.” Therefore, “it is a dangerous fiction to pretend that parents simply delegate their authority—including their authority to determine what their children may say and hear—to public school authorities.” Alito rarely speaks out in favor of broad free speech rights in cases like this one. The fact that he did so here may be a sign of just how off-the-wall Thomas’s originalist reasoning seemed to him. It may also reflect the concern Alito voiced in oral argument that schools could “suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions.” Alito likely had in mind friend-of-the-court briefs filed by Christian groups highlighting the rights of religious students.43

While the Court’s right-leaning justices argued over the implications of their ruling against Frederick, Stevens, joined by Souter and Ginsburg, forcefully blasted the “First Amendment bugle.” Echoing a point familiar from HLP, Stevens charged the conservative majority with abdicating its judicial role. Whereas Roberts saw no violation because the principal had “reasonably viewed” the banner “as promoting illegal drug use,” Stevens disagreed that such incomprehensible and harmless speech as “BONG HiTS 4 JESUS” could be punished based on what someone else might reasonably believe it means. This analysis, he warned, was an invitation to censorship of valuable expression.

Stevens also worried about the big picture: “The Court’s ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” If Frederick’s “stupid reference to marijuana” is punishable, students might be “forgiven for zipping their mouths about drugs at school lest some ‘reasonable’ observer” censor them. The Court’s rule, Stevens added, might even fail to protect “WINE SiPS 4 JESUS” banners.

Breyer echoed this concern, even while refusing to embrace Stevens’s attack unreservedly. Gifted with an endless supply of hypotheticals, which alternately dazzle and disorient at oral arguments, Breyer let loose: “What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain? What about deprecating commentary about an anti-drug film shown in school?”

To Stevens, “although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message.” Although he was by far the oldest of the justices, John Paul Stevens may have been the youngest at heart in his recognition that each generation has something to teach its elders. While school officials need tools to maintain control, Morse exalted the need for order over weighty First Amendment concerns.

Stevens’s dissent proved prophetic. Since Morse, the Roberts Court has functionally banished certain groups of speakers to the sidelines—occasionally at the expense of other First Amendment values. Although HLP, Beard, Garcetti, and Morse presented hard choices, in each case the Court decided against the pro-speech view. And each time, it advantaged the powerful over the comparatively powerless: students, prisoners, public employees, and human rights activists have all seen their speech protections against the government weakened.

The creation of these new silos of largely unprotected speech was not required by precedent. Instead, the Court made judgments about how to reconcile competing values. One might take issue with how the Court balanced free speech against other considerations in these cases, but at least the Court’s method of analysis was capable of accounting for the wide array of values at stake when we create First Amendment law.

In contrast, when it has upheld even questionable free speech claims, the Roberts Court has ardently disavowed any power to recognize new kinds of unprotected speech or to account for the dangers some speech might pose. It has insisted instead that speech gets either vast protection or nearly none at all—and that most of these decisions are wholly beyond its control. It has added that values other than liberty have little role to play in First Amendment calculus. Even to the extent that its position is plausible as a matter of hypertechnical doctrine, there is surely a hint of irony in the Court’s solemn denial of any power, any power at all, to adopt a more nuanced approach to the First Amendment.

*   *   *

Cases involving children have a way of revealing the justices’ distinct worldviews. In a ruling that expanded the circumstances in which kids must receive Miranda warnings (“You have the right to remain silent…”), Sotomayor displayed her pronounced bent toward “common sense” by invoking it repeatedly.44 When Kagan held that it would be “cruel and unusual punishment” to impose mandatory life-without-parole sentences on kids, she employed a powerful, plainspoken style: “If death is different,” she wrote, “children are different too.”45 In Morse, each of the justices who wrote an opinion divulged his most definitive traits—from the Chief’s taste for narrow rulings to Thomas’s tour of colonial classrooms.

Brown v. Entertainment Merchants Association proved to be equally illuminating.46 Decided in 2011, Brown struck down a California law restricting the sale or rental of violent video games to minors without parental approval. At argument, California relied on precedents that allow states to treat adults and children differently when regulating the sale of pornographic material. It argued that “there is no sound basis in logic or policy for treating offensively violent, harmful material with no redeeming value for children any different than sexually explicit material.” The Washington Post nicely summarized this argument: “If States can prohibit minors from buying Penthouse, Hustler, and Playboy, why not ‘Grand Theft Auto’ or ‘Mortal Kombat’?”47 California also emphasized its goal of helping parents to better monitor their children’s formative gaming habits, citing studies that, in the state’s view, proved a correlation between violent video games and violent behavior.

Scalia, joined in an unusual alliance by Kennedy, Ginsburg, Sotomayor, and Kagan, struck down the California law in a sweeping opinion. Scalia began by agreeing with the law’s backers that the unprotected obscenity of Hustler was no different in principle from the violence of Mortal Kombat. But according to Scalia, the two types of speech did differ on the basis of history—and that was enough.

Whereas Americans have long limited the provision of obscenity to children, Scalia explained that there is no “tradition” of treating violent speech aimed at kids as unprotected by the First Amendment. If anything, he insisted, the opposite is true: “Grimm’s Fairy Tales, for example, are grim indeed.… Hansel and Gretel (children!) kill their captor by baking her in an oven.” He added: “Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.” This section of Scalia’s opinion mirrored the oral argument, where Sotomayor feared the loss of popular rap music and Kagan added that half the Court’s law clerks had likely played Mortal Kombat while growing up. The Chief had pushed back on this history at argument, noting that “we do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg [for] mercy,” but the majority read the lessons of our past differently.

To Scalia, the fact that we have traditionally protected some violent speech directed toward children meant that all speech of that sort was entitled to the highest level of First Amendment protection. (And video games, he held, do qualify as speech.) California’s decision to target a new medium didn’t, in Scalia’s view, make our traditions any less applicable. Surveying efforts to “protect” children from films, comics, television, and music, Scalia emphasized that fear of corrupting the young has repeatedly been invoked without success to permit censorship of new forms of expression. Unimpressed by studies purporting to show a link between interactive video games and violent behavior, and doubtful that California’s law would effectively prevent minors from accessing other violent materials, Scalia shot it down.

Thomas, Alito, and Breyer strongly disagreed with Scalia. Each of their opinions says a lot about its author—and those by Alito and Thomas are a bracing reminder of oft-overlooked differences among the more conservative justices.

Thomas, still walking the lonely path he marked in Morse, composed an essay about the colonial period to explain why the First Amendment “does not include a right to speak to minors … without going through the minors’ parents or guardians.” A true believer in originalism, Thomas is willing to reimagine whole fields of law in ways that disturb even Scalia, who once described himself as a “faint-hearted originalist.”48 Scalia has since repudiated that much-cited moniker and affirmed his originalist bona fides, but, when asked in 2008 how he differs from “more extreme judges”—a reference that in context suggested Thomas—Scalia replied, “I’m an originalist and a textualist, not a nut.”49

Alito, joined by Roberts, assailed Scalia from the opposite direction. As with Thomas, when Alito was first nominated, some ill-informed critics derisively suggested that he was little more than a Scalia clone—“Scalito.” That is (and always was) an absurd claim. In recent years, Alito has emerged as a deep thinker about the role of new technology in constitutional law and a powerful critic of originalism.

Quite simply, Alito is a different kind of conservative. Hewing to a school of thought associated with Edmund Burke, he is protective of traditional values, sensitive to community-based norms, and skeptical of grand statements of principle that hover far above real-world implications.50 He is also respectful of the need for judges to reflect carefully on a changing world and cautiously develop new legal rules. This perspective is born of a streak in conservative thought committed to free markets and public enforcement of conservative values—a streak that reached its heyday in the 1970s as Republicans reacted with disgust to 1960s counterculture.

While speaking at Columbia Law School in 2012, Alito offered thoughts on Burke that illuminate his own beliefs: “One of Burke’s core insights was that the individual is foolish but the species is wise. Society is so incredibly complex that the solitary human mind is incapable of understanding how all the pieces fit together. Because the various components of the social order are interrelated in ways that are subtle and innumerable, it is almost impossible to predict all the consequences that will result from a rule. As a general matter, we can have greater confidence in established rules that have been tested and refined over time.”51

This mentality sets Alito apart from Scalia, who wields his brand of originalism with inexhaustible self-assurance and skepticism about the supposedly distinct perils of modernity. Whereas Alito wants the Court to examine how First Amendment values are implicated in each case, Scalia sees nothing but danger in that project. When Scalia charged at argument in Brown that California wanted to create an exception that Americans “never ratified when they ratified the First Amendment,” Alito shot back, “Well, I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

As Alito explained in Brown, the interactive nature of some video games is truly unprecedented: “If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.” These unique features of video games may require different rules, he suggested.

Alito ultimately voted to strike down California’s statute because he viewed it as impermissibly vague, but he expressed profound disagreement with Scalia’s core holding: “In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology.… And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology.”

While Alito urged caution and Thomas recounted colonial tales, Breyer mounted the most direct assault on Scalia’s reasoning. Calling upon the Court to forthrightly balance the benefits and evils of speech, Breyer saw “no more than a modest restriction on expression.” After all, he noted, the California law came nowhere close to banning the games. It merely required parental approval.

As usual, Breyer was excited by the chance to dive into a pile of social science research, which he lovingly detailed in a nine-page appendix to his opinion. While Scalia cavalierly dismissed California’s empirical basis for treating video games differently from Grimm’s fairy tales, Breyer exhaustively fact-checked the state’s case. In it he found a solid argument, not the kind of self-serving hunch the political branches sometimes employ to justify suppressing speech they deem threatening. Breyer was especially impressed by expert opinions from public health professionals and other disinterested social science organizations.

Breyer also challenged the rigid doctrinal distinction that allowed kids to access violent speech but not obscenity, a line that Scalia merely chalked up to history. Here Breyer delivered a truly memorable critique: “What kind of First Amendment would permit the government to protect children by restricting sales of [an] extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”

Finally, Breyer highlighted the values other than liberty that the Court had simply disregarded in Brown: “This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work. Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments.”

By any measure, Brown was a hard case. Violent expression, no less than sexual expression, can be artistic and educational. (Consider Quentin Tarantino’s Inglourious Basterds or Steven Spielberg’s Saving Private Ryan.) But it can also be uniquely traumatizing and destructive, especially to children and especially when experienced in virtual reality. There’s a good argument, then, for affording it a strong measure of First Amendment protection while also recognizing that reasonable restrictions supported by credible justifications may still pass muster. In Brown, Breyer and Alito both seemed to favor such an approach to the free speech question, one that would acknowledge the particular dangers posed by violent video games and carefully evaluate how those dangers should affect tolerable limits on the First Amendment rights of children. To them, California’s regulation—which did not ban the sale or use of games but merely required parental approval—raised tough questions.

Scalia, in contrast, saw a request for the Court to manufacture a broad new category of totally unprotected violent speech—a request, he said, the Court would not tolerate. History and history alone, he declared, decides whether we protect a category of speech from regulation. Since Brown involved violent speech, a historically protected category, he reasoned that the most rigorous First Amendment scrutiny applied to California’s law. There was no room in this all-or-nothing analysis for any reconsideration of the architecture of free speech rights, a bold assertion that, to some, may ring a bit hollow in light of the Court’s creativity in HLP, Beard, Garcetti, and Morse.

Scalia’s approach, if consistently applied, would have its virtues. Most important, it could prevent us from succumbing to our fears and blasting holes in the First Amendment at times of crisis. But it also has serious flaws, including a tendency to simply ignore new circumstances or competing values that deserve a home in the First Amendment.52 In Brown, Scalia embraced a rigid line between leaving speech out in the cold and fortifying it with our most unyielding doctrine, a choice that Breyer and Alito refuse to make. That struggle will shape the future of free speech at the Roberts Court—and beyond.

*   *   *

Scalia’s strict historical reasoning in Brown hearkened back to United States v. Stevens, a case decided in 2010.53 There, speaking for eight justices, Roberts struck down a federal law designed to thwart the manufacture and sale of “crush videos,” which document gruesome displays of animal torture. Alito colorfully summarized a sample crush video in his solo dissent: “A kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone.”

The federal law, however, was poorly drafted. It criminalized the commercial creation, sale, or possession of “animal cruelty,” defined as works “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place.” By its literal terms, the law may have reached even the creation of hunting magazines or the surreptitious recording of abusive slaughter techniques.

To Roberts, Stevens was therefore an easy case: the law could not survive because it criminalized far too much constitutionally protected speech. (Congress ultimately responded to Stevens by passing a more carefully drafted law, though its new statute has also been challenged on First Amendment grounds.54)

First, though, Roberts had to overcome an argument advanced by then–Solicitor General Kagan. Representing the government, she argued that the banned depictions of animal cruelty did not enjoy First Amendment protection. To support that position, Kagan defended a broad view of the Court’s power to fashion exceptions: “This Court has recognized that some categories of speech lack First Amendment protection, because the speech has little or no expressive value and causes serious societal harms. Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”55 In other words, when deciding whether a category of speech is covered, the Court should balance its benefits against its harms. Under that approach, Kagan argued, speech depicting illegal animal cruelty would surely qualify as unprotected. The federal statute would then survive, at least in most applications.

Kagan’s argument struck a nerve. Icily rejecting her proposal to recognize a “‘First Amendment Free Zone,’” Roberts called this “free-floating test for First Amendment coverage” “startling and dangerous.” The Chief argued that Kagan’s position would install too much power in the Judiciary to restrict speech by weighing malleable virtues and vices on an indeterminate scale. He noted that tradition already defines a small set of unprotected categories, such as obscenity, and strongly implied that the list is now closed. Then, in an unusually originalist turn, Roberts maintained that these limited exceptions have always been part of the Constitution: “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.” Scalia later relied on these statements in Brown to more firmly nail the door shut on recognizing new categories of unprotected speech—in that case, violent speech aimed at minors.

The history underlying the approach taken by Roberts and Scalia, however, is questionable: the obscenity exception, for example, took shape in the Eisenhower and Nixon eras and mostly in the Court’s own basement, not through a series of big, public decisions in 1791. More important, while it’s true that judges unmoved by legitimate free speech claims pose a threat to liberty, insisting on a closed list of unprotected categories is not necessarily a real safeguard. If five justices want to weaken free speech rights within a category of protected speech, they have plenty of options. They might say that the government gets unusually broad deference in that area (HLP), or that the capacity in which the speech occurred matters (Garcetti), or that the institutional context changes things (Beard), or that the speech can reasonably be interpreted as unprotected (Morse). Indeed, these Roberts Court rulings are all, at bottom, about varieties of balancing within categories of protected speech. The Chief’s powerful rhetoric in Stevens aside, the “judgment” made by “the First Amendment itself” has always been subject to an evolutionary common law process in which the Court plays a key role.

The flip side of this point is that even “unprotected” speech sometimes gets protection. Defamation, for example, was long considered “unprotected,” until Southern states levied trumped-up libel judgments against Northern newspapers during the civil rights movement. With its First Amendment guns blazing, the Court stepped in and imposed new constitutional limits.56

This historical background doesn’t mean the Court should have adopted Kagan’s proposal, of course. Well-defined categories of intensely protected speech can occasionally constrain judges in ways that matter, whereas opening the door to all sorts of new categorical exclusions from the First Amendment could rock our free speech landscape. Further, given the Constitution’s commitment to free speech, any such “balancing” must surely start with a heavy thumb on the scale in favor of speech—at least when government is censoring because of the ideas expressed or its fear that the speech will persuade. (In Stevens, by contrast, Congress aimed at crush videos because the act of creating them inflicted terrible harm.)

Together, Stevens and Brown cemented a rigidly categorical approach to the First Amendment. Kagan played a key role in both cases: in Brown, she provided Scalia with a critical fifth vote for his rejection of the position she had advanced just a year earlier in Stevens. Perhaps, if pressed, Kagan would resort to a time-honored quip made famous by Justice Robert Jackson in 1950, after he repudiated positions he had supported as attorney general: “The matter does not appear to me now as it appears to have appeared to me then.”57

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“Lying was his habit,” explained Kennedy. “[He] lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico.” Thanks to an opinion bearing his name, Xavier Alvarez is destined to become the most famous liar in all of constitutional law. A dubious honor, but at least it’s based in fact—unlike the Medal of Honor he claimed to possess when he lied yet another time while speaking to the Three Valleys Municipal Water District Board in Claremont, California, in 2007. This lie ultimately led to a prosecution under the perfectly named Stolen Valor Act, which Alvarez unabashedly contested by insisting that he enjoyed a First Amendment right to lie about possessing military medals.

In a witty opinion agreeing with Alvarez, Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals described a state-imposed “ever-truthful utopia” as “terrifying”: “If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship.”58 In Kozinski’s view, “If the First Amendment is to mean anything at all, it must mean that people are free to speak about themselves and their country as they see fit without the heavy hand of government to keep them on the straight and narrow.”

Kozinski did indeed describe a terrifying world. But was it truly a world threatened by the Stolen Valor Act? When United States v. Alvarez reached the Court, only four justices agreed with Kozinski’s broad denunciation of the law.59 Kennedy led Roberts, Sotomayor, and Ginsburg in this expansive approach. Invoking Brown, he held that the list of categorical exceptions to free speech protection does not include false statements. The Stolen Valor Act therefore faced (and flunked) exacting scrutiny. Kennedy reasoned, “the remedy for speech that is false is speech that is true.”

Echoing Kozinski, who is both a friend and a former law clerk of his, Kennedy forcefully warned that “permitting the government to decree [Alvarez’s] speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable.” Citing George Orwell’s classic dystopian novel 1984, Kennedy declared that “our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” He added, “Suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.” Kennedy’s powerful and engaging opinion on the nature of false speech and freedom will undoubtedly become a classic of the First Amendment canon.

Even though Alvarez is his only recent writing on the topic apart from cases involving campaign finance or commercial speech, Kennedy has played a pivotal role in the Roberts Court’s free speech cases. Whereas Ginsburg has reliably voted for free speech claims (except in campaign finance and commercial speech cases) and Alito has reliably voted against free speech claims (with the same caveat), Kennedy is the only justice to have voted with the winning side every time.

Kennedy’s argument in Alvarez left Alito unmoved. He dissented, joined by Thomas and Scalia—further demonstrating the persistent instability of First Amendment voting patterns. Pointing to a “long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest,” Alito argued that Alvarez fell squarely into an unprotected category. Emphasizing the unique role played by the military, Alito then derided fears that upholding the Stolen Valor Act would lead Congress to go on a bender and pass similar laws for “Super Bowl rings, Oscars, or Phi Beta Kappa keys.” “The safeguard against such laws,” he wrote, “is democracy, not the First Amendment.” In Alvarez, Alito was happy to work with strict rules, but only after he formulated an unprotected category that also suited his preference for allowing democracy to prohibit what he saw as valueless, harmful speech.

Breyer, as usual in free speech cases, wrote separately. He thought the Stolen Valor Act posed a difficult choice between free speech rights and preventing liars from diluting military medals. With these values in mind, Breyer offered his most developed challenge to the approach cemented in Brown and Stevens. He argued that the First Amendment must offer “proper protection” when a law “adversely affects constitutionally protected interests but warrants neither near-automatic condemnation … nor near-automatic approval.” In other words, Breyer urged his colleagues not to lose sight of values underlying the First Amendment, calling on them to assess in each case whether those values would be vindicated or undermined. The ultimate question, in his view, was “whether the statute works speech-related harm that is out of proportion to its justifications.”60

In Alvarez, Breyer ultimately came down against the Stolen Valor Act. But he emphasized the importance of Congress’s goal—which had nothing to do with suppressing disapproved ideas—and suggested that a new iteration of the law could survive judicial scrutiny. That new version, he remarked, should require specific proof of harm from an imposter’s lies. Breyer’s concurrence suggested a real struggle with the case, a suggestion he confirmed at a recent conference at Harvard Law School. Speaking with unusual candor, Breyer voiced uncertainty that his vote had been correct and emphasized that a narrower law protecting the Medal of Honor should probably be upheld.61

Breyer’s Alvarez opinion was classic Breyer, which makes it surprising (and intriguing) that Kagan joined it—and did so just one year after going along with Scalia’s entirely incompatible opinion in Brown. This pattern of votes strongly hints that Kagan’s vision of the First Amendment is still evolving and that she cannot yet be counted as a reliable vote for any particular approach to free speech issues.

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It was inevitable that our age of international conflict would generate hard free speech cases. Wars always do. In HLP, the Roberts Court dealt with pressing questions about civil liberties in wartime and the government’s management of foreign affairs. Several years later, in Snyder v. Phelps,62 the Court turned its focus from Turkey and Sri Lanka to a small funeral in Westminster, Maryland.

In 2006, marine Lance Corporal Matthew Snyder was killed in the line of duty in Iraq. His parents prepared a funeral for their fallen son at a Catholic church in Westminster. The Westboro Baptist Church, a small group of bigots who tour the country in search of high-profile venues at which to spew hatred, decided to transform Snyder’s funeral into a platform for their venom. The day of the funeral, Westboro protested, taking care to do so in full compliance with local law. Its placards read, “God Hates the USA / Thank God for 9/11,” “Thank God for IEDs,” “Semper Fi Fags,” “Thank God for Dead Soldiers,” and “Priests Rape Boys.”

Albert Snyder, Matthew’s father, saw only the tops of these signs during the funeral, but he learned the full story that night. Five weeks later, Albert discovered an online “epic” posted by Westboro that savagely attacked him, his ex-wife, and his recently buried son. Soon he plunged into a severe depression, with serious physical symptoms. Fred Phelps, the leader of Westboro, was held liable by a jury for intentional infliction of emotional distress and other torts, and the trial court ordered Phelps to pay more than $2 million in damages. In short order, this case reached the Court.

Roberts, joined by seven of his colleagues, came to view Snyder as a test of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” His opinion relied heavily on precedent affording strong protection to speech on matters of “public” concern, which he called the “essence of self-government.” Acknowledging that Westboro’s messages “may fall short of refined social or political commentary,” the Chief argued that “the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import.” The fact that Westboro “spoke in connection with a funeral,” and thereby “added to Mr. Snyder’s already incalculable grief,” did not alter this analysis. As Roberts explained, “On the facts before us, we cannot react to … pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Snyder reasoned that speech cannot be punished if it relates to “public issues,” which occurs when a speaker mentions a subject of “public import” and does so in a “manner designed … to reach as broad a public audience as possible.” Given this logic, the Court might still permit the punishment of a speaker who commits the same degree of verbal assault as Westboro and causes the same degree of injury to a victim—so long as the verbal attack does not touch issues of public debate or the speaker targets his victims without first alerting the media.

Snyder thus involves a mismatch: it protects speech for one reason (its context and content) against punishment imposed for a wholly different reason (its impact on listeners). This rule has much to commend it from a theoretical view: expression concerning public issues is vital to democracy and merits extra protection. But it may seem cruel to victims of verbal assaults who don’t care about the public character of the speech that is designed to hurt them. Albert Snyder surely felt no better knowing that his tormentors were also being viewed and debated on CNN. If anything, it’s easy to imagine such publicity making things worse.

The reaction to Snyder, though, marginalized these sorts of concerns.63 Indeed, Snyder prompted a wave of editorials breathlessly congratulating the Court for resisting the temptation to punish Westboro. As the Washington Post brightly opined, “The beauty of the First Amendment is often most vibrantly expressed under the ugliest of circumstances.”64

Alito viewed the case differently. He saw the father of a fallen soldier, standing amid the dead, being attacked. “Our profound national commitment to free and open debate,” he cautioned in a powerful opinion, “is not a license for the vicious verbal assault that occurred in this case.” After all, Albert Snyder wanted only “the right of any parent who experiences such an incalculable loss: to bury his son in peace.” Alito therefore dissented, adding that the First Amendment’s values would remain secure if Westboro lost: “Allowing family members to have a few hours of peace without harassment does not undermine public debate.… In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”

Snyder’s practical impact is likely to be limited. The Chief virtually invited legislatures to enact general rules restricting any protesting at funerals. Many states took the hint. Then, in 2012, Barack Obama signed a new statute barring protests within three hundred feet of military funerals. These laws often suffice to protect veterans’ families.

Practicalities aside, though, Snyder reminds us that unsuspecting innocents are occasionally forced to bear the brunt of a First Amendment whose benefits are diffuse and collective. The Court took an aggressive stand, essentially stating that the victims of this savagery must be left without protection as the price of our shared liberty. Whether one agrees or not, it is unsettling to be reminded of freedom’s steep cost.

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Nobody would nominate “simplicity” as a defining virtue of the First Amendment. The Court has long struggled to divine the many purposes of free speech and to reconcile them with the complex and often uncertain demands of security, privacy, order, and efficiency. From Holmes and Brandeis defending anti-war activists, to Marshall narrating elaborate orgies, to Roberts refusing to protect “BONG HiTS 4 JESUS,” the legal meaning of free speech has been hammered out in a series of profoundly difficult cases. The justices play a vital role in this ongoing process, whether or not they admit it. Their opinions decide whether new realities require new legal rules, how to adapt general principles to unforeseen circumstances, and what role judges will play in protecting minorities against calls for suppression. They shape our lived experience as well as our law.

Partly because of rulings like Brown and Snyder, the Roberts Court enjoys a strong “pro-speech” reputation. Appearances deceive. A closer look reveals that the Court is deeply torn over its vision of free speech. In many ways, the Court is not as libertarian as it sometimes seems.65

In particular, this Court has significantly weakened free speech rights in cases touching national security, schools, prisons, and public employment. These cases rest ultimately on a willingness to balance the costs and benefits of speech—with an occasional thumb on the scale against open expression because of where the speech is occurring or who is speaking to whom. In the same breath, however, the Court has insisted that the major outlines of First Amendment law are defined entirely by tradition, cannot be changed, and leave no room to balance competing values. That line of cases adopts an all-or-nothing rule: speech is either fully protected by the First Amendment or entirely excluded. If speech does make the cut, values such as self-development, education, and public accountability are all swept under the rug. If speech doesn’t make the cut, nearly anything goes. There is little room to be found in these majority opinions for alternative views of free speech rights.

That may soon change. Each in his own way and for his own reasons, Thomas, Breyer, and Alito have openly expressed deep unease with the Court’s current approach to free speech issues. When Roberts joined Alito in Brown, and when Kagan joined Breyer in Alvarez, they hinted at reservations of their own about some of the Court’s most pronounced trends.

Indeed, the key opinions in Morse, Garcetti, Brown, and Alvarez each prevailed by a single vote. Because the line of cases rejecting free speech claims has usually split the Court along left/right ideological markers, it is likely to remain stable unless the Court’s composition changes decisively. But the line of cases upholding free speech claims has fractured the Court in unusual ways. In those rulings, only Kennedy, Ginsburg, and Sotomayor have consistently voted with the majority. As a result, there appears to be room for more substantial realignment—though it’s impossible to predict what that would look like, since the justices who seem wary of this Court’s overarching free speech dogma hardly present a unified front.

Meanwhile, the First Amendment beats on, a sometimes skipperless boat drifting deeper into uncertain waters, ruddered only imperfectly by selected values and stories drawn from our murky past.