By Stacy Allen

In two 2010 decisions which, according to New York Times legal writer Adam Liptak, “suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech,” the U.S. Supreme Court struck down two federal statutes as unconstitutional encroachments of the First Amendment. Coincidentally, this emerging “Roberts Doctrine” has come at the expense of Supreme Court nominee Elena Kagan who (as the government’s lawyer) was on the losing side in both cases, and whose arguments were sharply criticized in Chief Justice Roberts’ own opinions. This recent sparring between Roberts and Kagan is of more than passing interest as confirmation of Kagan’s ascent to the High Court looms and, like the decisions themselves, may have far-reaching implications for media companies and free speech advocates.

In the first of these controversial cases, a 5-4 court held that the government may not ban spending by corporations on ads and other “electioneering communications” for or against candidates in federal elections. Citizens United v. Federal Election Commission, 130 S. Ct. 876 (Jan. 21, 2010). As Solicitor General, Kagan had defended the federal statute at issue in an unusual second argument of the case last September. Writing for the majority, Justice Kennedy ruled that “the Government may not suppress political speech on the basis of the speaker’s corporate identity” and declared that “[i]f the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” In doing so, the Court overruled two of its own prior decisions and rejected Kagan’s arguments in support of them.

In his concurring opinion, Chief Justice Roberts noted that major newspapers were also “owned by corporations” and worried that the logic supporting the government’s position and one of the rejected precedents “would apply most directly to newspapers and other media organizations.” While acknowledging that such corporate entities were exempt under the statute in its then-current form, Roberts took no comfort from what he characterized as “a matter of legislative grace,” concluding that “[t]he fact that the law currently grants a favored position to media corporations is no reason to overlook the danger inherent in accepting a theory that would allow government restrictions on their political speech.”

The Roberts Court further developed its view of broad First Amendment protection in the second of its two recent decisions. In United States v. Stevens, 130 S.Ct. 1577 (April 20, 2010), an 8-1 court overwhelmingly struck down a federal law that made it illegal to promote dogfight videos and other depictions of animal cruelty on the ground that the law covered too much speech protected by the First Amendment. Once again, Solicitor General Kagan had argued the government’s case in support of the statute. This time writing for the majority, Chief Justice Roberts first noted that “as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Citing Kagan’s brief, Roberts reviewed the government’s argument that depictions of animal cruelty “necessarily ‘lack expressive value,’ and may accordingly ‘be regulated as unprotected speech’ ” that falls into a “ ‘First Amendment Free Zone.’ ” He then decried as “startling and dangerous” the government’s proposal that “a claim of categorical exclusion should be considered under a simple balancing test: ‘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.’ ” In rejecting such a “free-floating” test out of hand, Roberts explained:

The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

As in Citizens United, Roberts was skeptical of assurances in Kagan’s briefs that the government had not and would not abuse the power conferred by the statute:

Not to worry, the Government says: The Executive Branch construes [the subject statute] to reach only “extreme” cruelty, … and it “neither has brought nor would bring a prosecution for anything less” …. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

Of course, Kagan cannot be faulted for doing her job as Solicitor General by vigorously defending the statutes which were ultimately declared unconstitutional, nor does her advocacy for the government necessarily reveal her own views about speech. Potentially more instructive are two First Amendment articles she wrote for the University of Chicago Law Review while teaching there in the mid-1990s. Some contend these articles betray her support of censorship of speech to prevent perceived harms to certain members of society (e.g., the harm pornography poses to women, the harm hate speech poses to minorities) and hint at the “societal costs” test she urged on behalf of the government in Stevens, and which Chief Justice Roberts rebuked. Others argue that her articles instead disclose skepticism about efforts to impose balance on the influence competing speakers have in the marketplace of ideas (suggesting her own antipathy to the government’s position in Citizens United) and embrace Justice Scalia’s belief that the First Amendment bans regulation based on the speaker’s viewpoint, suggesting that she would side with the Roberts majority more often than not. I myself agree with those who find her writings inconclusive, as then-Professor Kagan took pains to develop both sides of the arguments she explored and express her appreciation for the merits of each. The question of how a Justice Kagan – freed from the constraints of her client’s position or the classroom – would impact the Roberts Court’s developing “absolutist” approach to free speech thus remains tantalizingly unanswered.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For questions, please contact Stacy Allen or a member of the Media Law practice.