Dahlia Lithwick asks “[w]hy hasn’t the war against terrorism produced any great First Amendment cases?” As she notes, the absence of any major recent wartime free speech cases does not stem from the justices’ lack of interest in the First Amendment:
There seems to be no one answer to why there hasn’t been a single important First Amendment protest case in the last decade. It’s certainly not that the court is reluctant to rule on First Amendment issues altogether. The Supreme Court has taken up a surprising number of speech cases recently. But right now the court is more interested in crush videos, gay marriage bans, anti-Hillary Clinton movies, violent video games, corporate speech, and funeral protests than in the rights of people to criticize government wars. What does this say about the war on terror? And what does it say about what Americans care about most?
It’s not clear, however, that the Court’s docket says much at all about what the nation as a whole cares about. Indeed, if anything, the Court’s First Amendment docket is a symptom of a strange self-image newly embraced by legal conservatives.
As Dahlia notes, wartime often produces the Court’s “very worst” free speech cases. America is only a few generations removed from the time when anti-war protestors were jailed with the Supreme Court’s blessing. Modern First Amendment doctrine, by contrast, recognizes that dissenting voices must be accorded the highest degree of legal protection — after all people who disagree with the government are ultimately the only people who need the First Amendment.
As the nation evolved from one that criminalizes dissent to one that shields it, something odd happened to conservatives. Consider a statement by tenther law professor Randy Barnett explaining why he values the Federalist Society: “It’s kind of a support network for people who are sort of dissidents within their own academic environment — and I was one, before there was a Federalist Society, so I know how lonely it can be to be alone . . . .”
In the most superficial sense, Barnett is right. People who think that the minimum wage or anti-pollution laws are unconstitutional are very uncommon in the legal academy. They’re also a lunatic fringe pretty much everywhere else. On the same day that Democrats got shellacked at the polls, voters largely shunned candidates who vocally embraced Barnett’s radical vision of the Constitution.
But there’s something absolutely nuts about Barnett claiming the mantle of the oppressed minority. Barnett’s entire scholarly career has been devoted to rendering workers, children — indeed anyone who breathes air — powerless against corporate oppressors. Barnett is fundamentally on the same side as the early 20th century coal barons who forced children to toil in coal mines for pennies a day.
In some ways, the right’s new solidarity with political dissenters is a good thing — if they think they know what it’s like to be punished for speaking out, maybe conservative judges will also protect those who truly need the First Amendment’s protection. But America has also paid a step price for the right’s new self-image as the oppressed dissent.
In its loathsome Citizens United decision, the Court struck down limits on corporate takeovers of elections by warning that such limits “allow speech by some but not others” — the “others,” in this case, being massive pools of corporate money. In Hollingsworth v. Perry, a 5–4 Court forbade broadcasting the recent Prop 8 trial because anti-gay expert witnesses claimed that they would face “harassment” if the world got to see their faces.
But the right’s new self-image comes out most clearly in Christian Legal Society v. Martinez, an entirely banal case which reached the obvious conclusion that the government is not required to subsidize anti-gay student groups. The only interesting thing about Martinez is the fact that it produced a dissent. Justice Alito, joined by his three most conservative colleagues, compared the anti-gays to a 60s era new left group that was unconstitutionally kicked off of college campus’ because of its political views.
In other words, the answer to Dahlia’s question may be that a majority of the Supreme Court is no longer interested in helping the government suppress speech — they’re too busy finding new ways to amplify voices they agree with.