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A group of law schools and law professors challenged the constitutionality of a federal law, named for Rep. Gerald B.

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Solomon and known as the Solomon amendment. As chief justice, Roberts assigned the decision to himself and produced a unanimous opinion. Justice Samuel A. Alito Jr. Roberts rejected the First Amendment claims, shedding light on his view of what constitutes free speech. Roberts viewed the requirements of the Solomon amendment as involving conduct, not speech. He also said this was not a dispute in which the conduct — providing space and services — was inherently expressive or should be subjected to a higher standard used in such cases as in United States v.

Finally, he said the Solomon amendment does not pose a freedom of association problem: Military recruiters are simply present to conduct interviews; they are not trying to become part of the institution in the way that a gay man sought to be a Boy Scout troop leader as in Boy Scouts of America v.

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Dale In some of his opinions, Roberts has proven to be sensitive to First Amendment concerns. Stevens , invalidating a federal law that criminalized the creation or dissemination of images of animal cruelty. The government had argued that such images should be a new unprotected category of speech akin to child pornography.

Phelps , ruling that the First Amendment prohibited the imposition of civil liability against the Westboro Baptist Church for their highly offensive picketing near the funeral of a slain serviceman. On the facts before us, we cannot react to that pain by punishing the speaker.

Freedom of speech in the United States - Wikipedia

The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. How often does an avowedly anti-abortion jurist flag a potential argument for reproductive rights advocates? Lopez and United States v. Morrison , as well as by five justices in NFIB. The Commerce Clause is not the only doctrinal lever that progressives can use to advance reproductive rights before a Roberts Court. First Amendment compelled speech jurisprudence offers an additional tool. The first claim is a statement of opinion rather than fact; the second is a statement of fact that the facts do not support.

The Eighth Circuit upheld the South Dakota law in a opinion that was dubious under then-current doctrine. Progressive lawyers should help their physician friends take up the invitation. If Walmart sources from a factory that engages in unfair labor practices, unions can picket the factory but not Walmart.

The Court waved aside a First Amendment challenge to the prohibition in , but it is doubtful that conservative justices could uphold the ban on stare decisis grounds while maintaining a straight face. Hobby Lobby Stores, Inc.

U.S. Constitution Day 2018

Decisions like that have prompted progressive lawyers to look to RFRA as a way to defend the rights of the most marginalized members of society. One RFRA case that is coming up through the courts involves a member of a Unitarian Universalist ministry in Arizona who faces criminal charges for providing humanitarian aid to undocumented immigrants in the Sonoran Desert. The defendant, Scott Warren, argues that his religious beliefs compel him to provide aid to people who are suffering and dying in the desert and that federal prosecutors are imposing a substantial burden on his exercise of religion.

The list is far from exhaustive. Lawyers on the left can and likely will look for opportunities to use these doctrines for progressive ends. There are, to be sure, two categories of risks that this approach entails.

Free Speech and the Roberts Court: The First Amendment in the First Five Years

The first—and less serious—are the risks of losing. Progressives may discover that the Roberts Court umpires only call strikes on the right side of home plate. That would be a disappointing outcome—though no worse than not trying in the first place.

The Roberts Court and the First Amendment

The trial court also had not considered the possibility of less restrictive alternatives, e. In Waller v. A prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. First, in Procunier v. Under this framework, the Court held, regulation of mail must further an important interest unrelated to the suppression of expression; regulation must be shown to further the substantial interest of security, order, and rehabilitation; and regulation must not be used simply to censor opinions or other expressions.

Further, a restriction must be no greater than is necessary to the protection of the particular government interest involved. In Turner v. Safley , however, the Court made clear that a standard that is more deferential to the government is applicable when the free speech rights only of inmates are at stake. Second, are there alternative means of exercising the right that remain open to prison inmates? Third, what impact will accommodation of the asserted constitutional right. And, fourth, are ready alternatives for furthering the governmental interest available?

Safley , in Thornburgh v.

Kahn is First Amendment Panelist at 2018 Washington University Law Review Symposium

Abbott , the Court restricted Procunier v. Martinez to the regulation of outgoing correspondence, finding that the needs of prison security justify a more deferential standard for prison regulations restricting incoming material, whether those incoming materials are correspondence from other prisoners, correspondence from nonprisoners, or outside publications.

In Beard v. Neither prisoners nor reporters have any affirmative First Amendment right to face-to-face interviews, when general public access to prisons is restricted and when there are alternatives by which the news media can obtain information respecting prison policies and conditions. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally.

No greater specificity emerged from Houchins v. KQED , in which a broadcaster had sued for access to a prison from which public and press alike were barred and as to which there was considerable controversy over conditions of incarceration. Following initiation of the suit, the administrator of the prison authorized limited public tours.


The tours were open to the press, but cameras and recording devices were not permitted, there was no opportunity to talk to inmates, and the tours did not include the maximum security area about which much of the controversy centered. In exercise of the spending power, Congress may refuse to subsidize the exercise of First Amendment rights, but may not deny benefits solely on the basis of the exercise of such rights. The distinction between these two closely related principles seemed, initially at least, to hinge on the severity and pervasiveness of the restriction placed on exercise of First Amendment rights.

What has emerged is the principle that Congress may condition the receipt of federal funds on acceptance of speech limitations on persons working for the project receiving the federal funding—even if the project also receives non-federal funds—provided that the speech limitations do not extend to the use of non-federal funds outside of the federally funded project. In Regan v. In FCC v. League of Women Voters , by contrast, the Court held that the First Amendment rights of public broadcasting stations were abridged by a prohibition on all editorializing by any recipient of public funds.

There was no alternative means, as there had been in Taxation With Representation , by which the stations could continue to receive public funding and create an affiliate to engage in the prohibited speech. In National Endowment for the Arts v. But when the government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe. In All. In Legal Services Corp. If a case was underway when such a challenge became apparent, the attorney had to withdraw.

The Court distinguished this situation from that in Rust v.