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Managed SpeechThe Roberts Court's First Amendment$

Gregory P. Magarian

Print publication date: 2017

Print ISBN-13: 9780190466794

Published to Oxford Scholarship Online: March 2017

DOI: 10.1093/acprof:oso/9780190466794.001.0001

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Fair and Balanced

Fair and Balanced

Regulations of Political Dissent and Commercial Profit

Chapter:
(p.33) Chapter 2 Fair and Balanced
Source:
Managed Speech
Author(s):

Gregory P. Magarian

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780190466794.003.0002

Abstract and Keywords

This chapter covers the more common First Amendment technique of balancing speech interests against government regulatory interests. Here the Roberts Court has reached divergent outcomes in two major decisions about the First Amendment rights of political dissenters. Caustic anti-LGBT protesters won the right to protest near military funerals. On the other hand, peace activists were denied the right to teach foreign terrorist groups about non-violent conflict resolution. This chapter shows that the peace activists’ loss, with its sweeping deference to the government’s national security concerns, reaches further and matters more than the funeral protesters’ victory. A striking contrast to the Court’s lack of concern for serious political dissent emerges in this chapter’s analysis of a decision that invokes the First Amendment to protect commercial data mining.

Keywords:   U.S. Supreme Court, Roberts Court, First Amendment, free speech, private speech, First Amendment balancing, political dissent, funeral protests, terrorism, commercial speech

Judicial balancing of speech interests against government regulatory goals has dominated First Amendment law since the 1970s. Courts presume that speech, other than the sorts of categorical exclusions discussed in Chapter 1, gets First Amendment protection. That protection, however, yields if the government can present strong enough reasons for regulating speech.1 First Amendment balancing entails a basic set of questions: Is the government restricting someone’s protected speech? If so, does it have a good enough reason to justify the restriction? Even if it does, is it still respecting speech rights as much as possible? We’ve already seen the Roberts Court in last chapter’s Stevens, Entertainment Merchants, and Alvarez decisions balance speech against regulation after rejecting the government’s categorical arguments for excluding speech from First Amendment protection.

A rigorous version of First Amendment balancing, strict scrutiny, applies in most cases where government restricts private speech (speech that does not involve any of the forms of government support discussed in Part II). Under strict scrutiny, if the government is restricting speech because of the speech’s content or the speaker’s viewpoint, the government can defeat a First (p.34) Amendment claim only if it can show both that (1) it has a “compelling interest,” a reason of the very highest importance, for the speech restriction; and also that (2) the speech restriction is “narrowly tailored” or “the least restrictive means” of pursuing its compelling interest. When strict scrutiny applies, the government almost always loses. I’ve said that strict scrutiny applies in “most” cases where the government regulates the content or viewpoint of private speech and that the government “almost always” loses under strict scrutiny. This chapter shows important exceptions to both of those norms. We’ll see the Court, in a case about the special First Amendment niche of commercial speech, review a content-based speech regulation under a milder standard than strict scrutiny. Much more remarkably, we’ll also see the government, in a case that pits free speech against national security, win under strict scrutiny.

Two of the major cases discussed in this chapter, Snyder v. Phelps and Holder v. Humanitarian Law Project, deal with government restrictions on political dissent. Almost a century ago, Justice Brandeis portrayed “the discovery and spread of political truth” as the paradigm of public debate, which he called “a political duty.”2 A major strand of First Amendment theory, tied most strongly to Alexander Meiklejohn, holds that the main point of constitutional speech protection in a democratic system is to help us govern ourselves.3 “We the people” need to hear as many different political ideas as possible if democracy is going to work. Political dissent is distinctively vulnerable to government restriction. The government and powerful private interests cling to the status quo because they make the status quo. Political dissent, by its nature, challenges the status quo, often very aggressively. Political dissenters take food off the power structure’s table. Political dissent stands at the center of my dynamic diversity model of constitutional speech protection.

The Roberts Court has let the government suppress dissent with a real capacity to destabilize the status quo. This chapter traces a similar narrative arc to that of Chapter 1. It begins, as Chapter 1 did, with one of the Roberts Court’s speech-protective high points, the Snyder decision. As in Chapter 1, however, close examination diminishes the high point, which gives way to a more important speech-restrictive low point, Humanitarian Law Project. Then we’ll see a renewed emphasis on speech protection in Sorrell v. IMS Health, Inc. That decision, which rejects a state regulation of commercial data mining, commodifies speech just like the Chapter 1 copyright extension decision, Golan v. Holder. Finally, Reed v. Town of Gilbert reiterates First Amendment law’s crucial bar against content-based speech regulations. The breadth of the decision’s reasoning, however, makes its meaning and impact uncertain. The contrast between Snyder and Humanitarian Law Project suggests the Roberts (p.35) Court only protects political dissent that doesn’t pose a serious threat to social and political stability. The contrast between Humanitarian Law Project and IMS Health suggests the Roberts Court prioritizes speech for profit over political dissent. Those priorities fit the template of managed speech.

Defending the Speech We Hate

“I disapprove of what you say, but I will defend to the death your right to say it.”4 Those famous words might have been written especially for Fred Phelps and his Westboro Baptist Church. Phelps and the Westboro Baptists passionately hate LGBT people. They travel around the country to protest funerals of service members killed in action, promoting the theory that God kills U.S. soldiers and sailors because the United States doesn’t sufficiently persecute gays and lesbians. In the events that gave rise to Snyder v. Phelps (2011),5 Phelps and five other church members traveled to Maryland to protest the funeral of Marine Lance Corporal Matthew Snyder, who was killed in action in Iraq. They carried signs with such messages as “Thank God for Dead Soldiers,” “God Hates Fags,” “God Hates You,” “You’re Going to Hell,” and “Priests Rape Boys” (the Snyder family is Catholic). After the funeral, Snyder’s father, Albert, sued the church members in state court under several tort theories, with “intentional infliction of emotional distress” the pivotal claim. Put simply, Albert Snyder claimed that the Phelps Church’s actions at his son’s funeral had caused him severe emotional harm. A jury awarded him almost $11 million in damages. On appeal, the Phelps Church argued that the state court violated the church’s right to freedom of speech when it let the jury award Snyder damages based on the church’s political protest activities.

The First Amendment doesn’t always prevent people from recovering damages for injuries they suffer from speech. Most prominently, as I noted last chapter, our law has always allowed a private person to recover damages when someone defames the person’s reputation. The Supreme Court’s seminal 1964 decision in New York Times Co. v. Sullivan,6 however, puts major First Amendment hurdles in the way of public officials who sue for defamation, based on “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”7 The Court later extended the Sullivan limits to defamation suits by certain “public figures,” (p.36) non-officials who have achieved prominence or notoriety.8 In a 1988 case, Hustler Magazine, Inc. v. Falwell,9 the Court followed its defamation precedents in barring the Reverend Jerry Falwell, a public figure, from recovering tort damages for a Hustler magazine parody that claimed Falwell had sex with his mother. Falwell had sued Hustler for intentional infliction of emotional distress, the same legal claim pressed by Snyder. Falwell makes that sort of case very hard for public figures such as Falwell to win. Albert Snyder, though, isn’t a public figure. He seemingly should be able to recover damages for his emotional distress without upsetting the First Amendment.

In Snyder v. Phelps, Chief Justice Roberts’ majority opinion looks behind the holdings of Sullivan and Falwell to emphasize a deeper principle that defeats Snyder’s claim. Sullivan puts First Amendment limits on defamation suits by public officials not just because of who those officials are but because of what the speech that defames them is about. If I proclaim that the president of the United States is a lying scoundrel, I’m attacking a man’s reputation, but mainly I’m criticizing the president of the United States. Just about any criticism of the president, however implausible or personal, has to count as debate on a public issue, unless we want to risk stifling political dissent. The subject under discussion triggers the First Amendment concern. That’s the dimension Chief Justice Roberts emphasizes in Snyder: “whether th[e]‌ speech is of public or private concern, as determined by all the circumstances of the case.”10 This “public concern” analysis has long played an important role not just in defamation cases but in other areas of First Amendment law.11 The chief justice concludes that the Phelps Church was protesting about matters of obvious public concern. Phelps Church members descended on Matthew Snyder’s funeral not to berate his mourners personally, but to press the church’s views about the political and social status of gays and lesbians, views that also implicate other matters of public concern such as war and patriotism. The jury’s finding that the church members’ speech was “outrageous” depended on a “highly malleable standard,” and therefore could not properly trump the First Amendment’s protection for speech on matters of public concern.12

Albert Snyder’s status as a nonpublic figure doesn’t change the chief justice’s First Amendment analysis. In curbing public officials’ and public figures’ (p.37) defamation suits, the Court has pointed out that public officials and public figures have greater opportunities than private citizens to defend their reputations through the media. The Court has also noted that public officials and (sometimes) public figures choose to place their reputations in the public’s crosshairs.13 The first of those justifications doesn’t apply to emotional distress at all, and the second arguably shouldn’t apply as strongly to emotional well-being as to reputation. Those differences between reputation and emotion may explain why the Court used Snyder, an emotional distress case, to emphasize the importance for speech injury cases of what the defendant is discussing, as distinct from whom the defendant is attacking. What matters at bottom in both defamation and emotional distress cases is whether the defendant is speaking about a matter of public or private concern. In defamation cases, the plaintiff’s public or private status works well as a proxy for that underlying criterion. The emotional distress context, on the other hand, requires courts to look directly at what the speech is about.

The Court’s result seems unfair to a nonpublic figure such as Albert Snyder. Why do his grief and pain matter less than robust debate about matters of public concern? He didn’t set out to make a public statement; he only wanted to bury his son. That human cost prompted (as in last chapter’s Stevens case) a forceful solo dissent from Justice Alito. He deplores the idea that such speakers as the Phelps Church “may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.”14 Justice Alito spotlights serious concerns that free speech advocates sometimes soft pedal. Speech can, and does, injure people. Ignoring those injuries is unfair to those people, who might include you or me as surely as censored speakers might include you or me.

Chief Justice Roberts’s reasoning, though, doesn’t ignore the harm the Phelps Church did to Albert Snyder. Instead, the chief justice says that harm “turned on the content and viewpoint of the message conveyed.”15 He explains why our societal interest in having robust debate about matters of public concern must outweigh Snyder’s interest in recovering for his injury. If everyone in Snyder’s position could make speakers pay for the hurt they caused, then all manner of political statements would become too expensive to utter. Think of arguments that undocumented immigrants should go back where they came from, that society shouldn’t spend money on extending elderly people’s lives, (p.38) or that all police officers are prone to violence. All of those arguments can cause emotional injuries, but they all have political substance.

Moreover, the boundary that divides innocuous from injurious speech can be hazy. Say I want to argue at a school board meeting that single parents are partly to blame for discipline problems in my school district. I believe reasonable people probably can distinguish my argument from a vulgar protest at a military funeral. Still, my argument might deeply distress some single parents—and that jury awarded Albert Snyder $11 million. Better safe, I might decide, than sorry. The Court calls that a chilling effect on speech. Snyder reflects the insight that chilling speech can damage public debate as surely as banning speech outright.

Justice Alito offers no substantial response to the majority’s concerns about stifling political debate and chilling speech. He makes no serious effort to define “Phelps-type” personal attacks, let alone weed them out of protected speech. He insists that the emotional distress tort encroaches only slightly on free speech,16 but that’s really beside his point, because he doesn’t want the First Amendment to protect the Phelps protest or its (undefined) ilk at all. He places crucial reliance on the authority of Chaplinsky v. New Hampshire,17 the prototype categorical exclusion case, whose flaws we saw emerge in Chapter 1. Why can’t Justice Alito forge his outrage at the Snyder result into a workable legal standard?18 Robert Post has probed what he calls the paradox of public discourse: vigorous public debate can’t work if we don’t make basic efforts to keep it civil, but imposing civility rules means suppressing ideas and making public debate less vigorous.19 Dean Post concludes that, in our legal and political conditions, no answer to the paradox exists. First Amendment law accordingly has a hard time dealing with the harm that speech can do.20

Snyder relies heavily on the distinction between matters of public and private concern. Our legal system often struggles to untangle the public from the private.21 I’ve criticized the Roberts Court for its deployment of the (p.39) public-private distinction in Golan v. Holder, last chapter’s copyright extension case. Golan used the public-private distinction to avoid a difficult legal and normative problem, the conflict between copyright holders’ and new users’ expressive interests. Snyder, in contrast, uses the public-private distinction to resolve a difficult legal and normative problem, the balance of interests between political protest and an individual’s emotional well-being. If we believe First Amendment law should protect political debate and dissent with special vigilance, then the “public concern” analysis in Snyder does useful work. The Phelps Church’s protest undoubtedly hurt Albert Snyder, but what matters under Sullivan is whether a speaker addresses issues the political community has reason to care about.22 As vile as most people find the Phelps Church’s protests, we benefit from knowing that such people and ideas exist. Whether Snyder should have to bear the cost of our edification is a different question.23 In other situations when we fear a speaker will wound or provoke his audience, taxpayers divide the cost of preventing the harm by paying for police to maintain order.24 Perhaps states should extend that cost-spreading approach to emotional distress by setting up funds to compensate victims of injurious speech.

Snyder reaffirms the principle that the First Amendment protects speech on matters of public concern, and the decision clarifies that principle’s central importance for First Amendment limits on tort liability for speech. Like Stevens and Entertainment Merchants last chapter, however, Snyder appears unlikely to have broad impact. The decision doesn’t come close to protecting the Phelps Church’s right to protest however it wants to at military funerals. Consider what the Phelps Church members actually did at Matthew Snyder’s funeral. They told city authorities in advance that they planned to protest. They protested for about 30 minutes. They confined themselves to a 10-foot by 25-foot plot of public property, behind a temporary fence, approximately 1,000 feet from the church where the funeral took place, with several buildings between them and the church.25 They did not raise their voices or use (p.40) profanity. They directed their protest at the public rather than the mourners. The funeral procession passed within 200 to 300 feet of the protest. All Snyder saw were the tops of the protesters’ signs; he didn’t find out what the signs said until he watched the television news.26

Chief Justice Roberts declares that laws restricting protesters from getting too close to funerals, enacted by the federal government and 44 states, raise issues not presented in Snyder.27 He emphasizes that the Phelps Church “addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials” and “did not … disrupt [the] funeral.”28 Weeks after the funeral, a Phelps Church member made a Web post, “the epic,” that attacked the Snyder family in more personal terms. The chief justice, however, holds that Snyder did not make the epic a subject of the dispute the Court was deciding, and he states that Internet posts might raise very different issues than those in Snyder.29 The chief justice sums up: “Our holding today is narrow.”30 Justice Breyer, who joined the Court’s opinion, wrote a separate concurrence to emphasize how much the result depended on the particular facts of the case.31

If you’re a Phelps Church member, or any other sort of political protester, Snyder doesn’t tell you much about your First Amendment rights. All you know for sure is that, if you protest about wholly, clearly political subject matter and wrap your protest in several layers of tactical restraint (however vicious your message might be), a court won’t hold you liable for intentional infliction of emotional distress. Take away any one of those elements and you have a different case. If any aspect of your protest is arguably a matter only of private concern, if you don’t warn the police that you plan to protest, if you’re loud, if you’re profane, if you try to get to a position where the person you’re protesting can actually see you, if that person does see you, if you appear to address that person directly, or if you continue your protest on your website, then Snyder gives you no security. If you face some direct state restriction on (p.41) your protest rather than a private tort claim, Snyder tells you even less. In fact, when Chief Justice Roberts mentions the federal and state laws that keep protesters from getting too close to funerals, he favorably cites several cases that upheld broadly similar speech restrictions.32

Another factor in Snyder further diminishes the decision’s importance. Almost everyone detests the Phelps Church, as strongly as most people despise the child pornography panderer from last chapter’s Williams case. When you grossly offend everyone who cares about either LGBT rights or the military, you’ve likely reduced your pool of supporters to your immediate family. Literally, in this case: all the protesters at Matthew Snyder’s funeral were blood relations of Fred Phelps. On one hand, the Phelps Church’s pariah status makes Snyder that much more principled. The Court certainly didn’t hold in favor of the church to win friends. On the other hand, vindicating the rights of a dissident group is a lot easier when you’re sure no one will ever take the group seriously.33 Justice Oliver Wendell Holmes Jr., dissenting from one of the Supreme Court’s first decisions that denied a First Amendment claim by political protesters, called the antiwar dissidents in that case “puny anonymities” and likened their speech to “the surreptitious publishing of a silly leaflet by an unknown man.”34 Such rhetoric, although strategically useful, implies that the First Amendment shouldn’t prevail when a more powerful, prominent, or charismatic political dissident mounts a serious protest that threatens to capture the public’s attention and maybe even to persuade people to oppose the status quo. A more stringent test of the Court’s speech-protective convictions comes when the government tries to suppress political dissent with a more appealing message.

Suppressing the Speech We Fear

At the height of the McCarthy era in the 1950s, the Supreme Court exposed the speech-restrictive underbelly of Justice Holmes’s “puny anonymities” rhetoric. In Dennis v. United States,35 the justices let the federal government punish leaders of the U.S. Communist Party for the crime of conspiring to advocate revolution. The communist leaders in Dennis hadn’t planned, let alone committed, any acts of violence. They hadn’t taken active steps toward revolution. They had simply taught and advocated revolutionary communist (p.42) dogma.36 Chief Justice Fred Vinson’s plurality opinion in Dennis declared that the Court had been wrong in its early First Amendment decisions to deny First Amendment rights to antiwar dissidents, anarchists, and communists.37 Chief Justice Vinson explained, however, that the Communist Party of the 1950s posed a different, more serious kind of threat than those earlier “unknown men.” The majority justices’ opinions in Dennis radiate fear that the international communist conspiracy would subvert the American way of life. Justice Felix Frankfurter, concurring in the judgment, even argued that the Court should simply defer to Congress whenever free speech clashes with national security.38

The Supreme Court eventually repaired the hole that Dennis punched through the First Amendment. The 1969 case of Brandenburg v. Ohio39 (noted in Chapter 1) holds that the Amendment fully protects mere advocacy of lawless action, as distinct from actual incitement. Brandenburg, however, dealt with a ragtag Ku Klux Klan rally in the middle of a rural field. The Klan certainly had, and has, more support public than the Phelps Church of Snyder, and it’s done far more damage. Even in 1969, however, the Klan had fallen far from its terroristic peak.40 The Brandenburg Court’s opinion portrayed the Klansmen in that case as buffoons. That portrayal evokes the Phelps Church and Justice Holmes’s “unknown man” much more than it evokes the fearsome communist conspiracy portrayed in Dennis. Although academic opinion now favors First Amendment protection for advocating unlawful action, the question has always defined a fault line in free speech theory. Most notably, conservative legal legend Robert Bork argued forcefully that the First Amendment should protect only appeals for lawful political change, not exhortations to revolution.41

The Roberts Court’s major decision that responds to suppression of significant political dissent resembles Dennis more than Brandenburg. A federal statute allows the secretary of state to designate non-U.S. groups as “foreign terrorist organizations.”42 A “foreign terrorist” designation carries various legal consequences. A separate federal statute, the “material support law,” lays out one such consequence. Under the material support law, any U.S. citizen who provides “material support or resources” to a designated foreign terrorist organization commits a federal crime.43 The law defines “material support” to (p.43) include, among other things, “any … service, including … expert advice or assistance, [or] personnel.”44 The case of Holder v. Humanitarian Law Project (2010)45 arose when several U.S. groups and individuals (for simplicity, I’ll just refer to the Humanitarian Law Project, the lead plaintiff) wanted to provide humanitarian and political support to two designated foreign terrorist organizations: the Kurdistan Workers’ Party (PKK), which seeks to create a Kurdish state in Turkey, and the Liberation Tigers of Tamil Eelam (LTTE), which seeks to create a Tamil state in Sri Lanka. Both organizations pursue their goals through a combination of violent attacks, political appeals, and humanitarian projects. The Humanitarian Law Project wanted to train the two groups in peaceful conflict resolution, help them negotiate peace agreements, teach them how to petition international bodies for humanitarian aid, and advocate politically for their goals. Concerned that the material support law might criminalize some or all of those activities, the group went to court, seeking a judgment that using the law to stop or punish them would violate the First Amendment.

Chief Justice Roberts, the author of Snyder, wrote the majority opinion in Humanitarian Law Project as well. His opinion begins by resolving some important secondary issues. First, the Humanitarian Law Project argued that the Court could read the material support law to bar only activities the actor specifically intends to advance a foreign organization’s terrorist agenda. That reading would reduce the material support law to a ban on terrorist conspiracies, which would present no problem for the First Amendment (or the Humanitarian Law Project). The chief justice rejects that narrowing interpretation, holding that the material support law requires only knowledge of an organization’s terrorist status.46 Later, however, he adopts a different narrowing interpretation, which he calls a simple matter of “ordinary meaning.” The material support law, he declares, only covers activities “coordinated” with a terrorist organization, not “independent” activities.47 Second, the Humanitarian (p.44) Law Project argued that key terms in the material support law were unconstitutionally vague. The chief justice, however, finds that the Humanitarian Law Project’s proposed activities clearly fit within the words of the law.48

The government argued that the Humanitarian Law Project’s proposed activities weren’t “speech” at all but rather “expressive conduct,” actions that just happened to convey a message. The Court applies a more lenient standard of review to restrictions on expressive conduct than to restrictions on pure speech.49 The government in Humanitarian Law Project wanted the benefit of that lenient standard. No, says Chief Justice Roberts; this is a pure speech case.50 To win, therefore, the government needed to satisfy strict scrutiny. In almost any free speech case, a court’s choice to apply strict scrutiny is all the good news the speaker needs. In a nearly unprecedented result, however, the government in Humanitarian Law Project prevailed under strict scrutiny.51

Recall that, to satisfy strict scrutiny, the government must first show a “compelling interest” for its speech restriction. That showing was easy for the government to make in Humanitarian Law Project: The interest in combating terrorism is, in Chief Justice Roberts’ words, “an urgent objective of the highest order.”52 The second prong of the strict scrutiny test seemed to present a steeper challenge. The government must show that the challenged speech restriction is “narrowly tailored” to accomplish its compelling interest, which means the government could achieve its compelling interest only by suppressing speech. In Humanitarian Law Project, the government had to show that, to fight terrorism effectively, it absolutely needed to bar the Humanitarian Law Project from saying what the group wanted to say to the PKK and the LTTE. The Humanitarian Law Project maintained that the government couldn’t possibly make that showing. How can teaching terrorist groups to use peaceful rather than violent strategies hurt the fight against terrorism?

Let me count the ways, answers Chief Justice Roberts. First, he frames the case by portraying all designated terrorist groups as essentially violent and their (p.45) resources as fully fungible. “Material support” of the sort the Humanitarian Law Project planned “is a valuable resource [that] frees up other resources within the organization that may be put to violent ends.”53 Any conceivably useful input to a terrorist organization, including training in peaceful conflict resolution, will cash out as terrorist violence. Second, because terrorist groups are incorrigibly violent, “working in coordination with or at the command of the PKK and LTTE serves to legitimize and further their terrorist means.”54 You can’t help a terrorist group become less terroristic; you can only help the group appear less terroristic, and that appearance promotes terrorism by legitimizing the group. Third, for U.S. groups to provide material aid to terrorist organizations “furthers terrorism by straining the United States’ relationships with its allies and undermining cooperative efforts between nations to prevent terrorist attacks.”55

Critical analysis puts considerable pressure on all three of those central planks in Chief Justice Roberts’s reasoning. The idea that political advocacy is “fungible” with terrorist violence presents both empirical and normative problems. Empirically, as Justice Breyer contends in his dissent, the fungibility argument seems implausible, and the Court offers no support for it.56 Normatively, the Court’s description of speech as a fungible economic commodity resonates with Golan v. Holder, last chapter’s copyright extension case. Here, as there and (we’ll see) elsewhere, the Roberts Court treats speech as a vehicle not for exploring ideas but for exchanging value in transactions that have predictable, even inevitable economic consequences. As in Golan, the economic account of speech in Humanitarian Law Project casts doubt on expression’s constructive or transformative capacity. Teaching terrorists to be more peaceful, the chief justice tells us, can’t actually make them more peaceful. Terrorism just vacuums up any ideas it encounters and spits them back out as bombs. Why, though, should we limit that premise to terrorists? If speech can’t actually transform the way anyone thinks or acts, then why should we grant speech strong constitutional protection at all?

The Court’s holding that the government may restrict speech to prevent terrorist organizations from gaining legitimacy raises even deeper First Amendment concerns. As Justice Breyer emphasizes, the Humanitarian Law Project’s planned activities amount to speech with a political message.57 By citing legitimation of terrorism as a dangerous effect that justifies suppressing the speech, the Court lets Congress identify and censor “bad” political ideas. “If there is any fixed star in our constitutional constellation,” Justice Robert Jackson famously declared, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other (p.46) matters of opinion.”58 Humanitarian Law Project, though, holds that the government may punish speech that could cause us to think better of groups the government labels as terrorists. A related problem with the “legitimation” rationale is that preventing legitimation, as opposed to combating it with counterarguments, requires shutting down speech before the speech reaches an audience. The Court has long treated restraints on speech prior to publication as obviously unconstitutional censorship.59 In addition, the legitimation argument’s premise—that terrorist-legitimating speech can change public opinion—belies the Court’s claim that peace-promoting speech can’t change terrorists’ violent nature. Chief Justice Roberts appears to credit terrorists with greater strength of will than the U.S. public.

Beyond those normative problems with the “legitimation” argument, the Court’s distinction between coordinated and independent speech that legitimates terrorism feels slippery. As Justice Breyer points out, nothing logically distinguishes coordinated and independent acts of legitimation. In fact, he explains, independent speech will presumably do more to legitimate terrorist organizations than coordinated speech will, because independent advocacy carries greater credibility than concerted action.60 Chief Justice Roberts responds that Congress (helped, he might have noted, by his own narrow interpretation of the material support law) drew a line between coordinated and independent material aid.61 Under strict scrutiny, however, legislative fiat can’t substitute for a logical fit between means and ends. Recall Entertainment Merchants (Chapter 1), in which the Court held that letting parents buy their children violent video games defeated the purpose of barring children from buying the games themselves. In the same way, the opportunity to aid terrorist groups independently would seem to defeat the purpose of banning only coordinated material aid. Moreover, the distinction between coordinated and independent activity artificially segregates the First Amendment rights of speech and assembly. Humanitarian Law Project emphasizes both that the material aid statute doesn’t bar independent advocacy and that it doesn’t bar anyone from joining terrorist organizations.62 What the Court allows the statute to bar, though, is combining speech with assembly. First Amendment law has a name for that combination: expressive association, which the Court has long treated as a distinctively important form of expressive activity.63

(p.47) The holding of Humanitarian Law Project that Congress may suppress speech in order to maintain friendly relations with foreign allies raises further difficulties. One of the most familiar principles in free speech theory is that the government can’t enforce a “heckler’s veto.” That is, the government may not censor or restrict a speaker because the audience doesn’t like the speaker or the speaker’s ideas.64 Snyder v. Phelps strongly affirms that principle. How, then, can Chief Justice Roberts in Humanitarian Law Project cite foreign governments’ potential objections to the speech of political dissenters as a constitutionally valid reason for squelching that speech? He offers an example: “The Republic of Turkey … would react sharply to Americans furnishing material support”—in the form of speech—“to foreign groups like the PKK.”65 Several years ago, I spoke at a meeting of the Armenian Bar Association in Philadelphia. The keynote speaker was the Armenian-Turkish journalist Hrant Dink. The Turkish government had convicted Dink of violating a law that bars acknowledging the Armenian genocide, an acknowledgment that Turkey views as a grave affront to its national dignity. Not surprisingly, our meeting’s attendees applauded Dink’s actions, and the program amounted to one long act of coordinated advocacy for genocide recognition and free speech.66 Humanitarian Law Project strongly suggests Congress could have banned that meeting. Chief Justice Roberts might respond that Hrant Dink wasn’t a terrorist. The chief justice’s opinion for the Court, however, would let Congress assess the Armenian Bar Association’s support for Dink “from Turkey’s perspective,”67 a perspective that might well equate Kurdish nationalist terrorists with Armenian genocide apostates.

The Humanitarian Law Project majority defers almost completely to the will of Congress and the executive branch. Where “weighty interests of national security and foreign affairs are concerned,” Chief Justice Roberts intones, “the lack of competence on the part of the courts is marked, and respect for the Government’s conclusions is appropriate.” As to terrorism in particular, “information can be difficult to obtain and the impact of certain conduct difficult to assess,” making demands for “hard proof” of the need to suppress speech unreasonable.68 The chief justice trusts Congress’ self-restraint to protect free speech rights,69 exactly the sort of faith he refused to indulge in Stevens, last (p.48) chapter’s animal cruelty case. To the suggestion that the Humanitarian Law Project’s efforts might conceivably do some good, Chief Justice Roberts replies: “Congress and the Executive … have concluded that we live in a different world.”70 Four decades before Humanitarian Law Project, the Supreme Court in New York Times Co. v. United States71 refused President Richard Nixon’s plea to block publication of the Pentagon Papers, a compilation of classified documents about the then-ongoing Vietnam War. The Nixon administration argued that, when the executive branch thinks free speech poses an unacceptable threat to national security, the Court should get out of the way. The Court’s rejection of that argument opened a door, politically and ethically if not legally, for revelations such as former government contractor Edward Snowden’s 2013 leak of National Security Administration documents that exposed widespread government surveillance of U.S. citizens.72 Humanitarian Law Project closes that door and gives the Nixon administration’s demand for deference a belated victory.

Humanitarian Law Project closely parallels Dennis, the communist advocacy case from the 1950s. The Court proceeds from a formally strong, speech-protective mode of First Amendment analysis. However, the Court views the dispute as involving an existential threat to national security whose special characteristics nullify ordinary free speech principles. The Court thus refuses to enforce the First Amendment against the government’s judgment. Brandenburg v. Ohio, the Klan rally case, tacitly overruled Dennis. Humanitarian Law Project, in turn, appears to defy the central thrust of Brandenburg: that the government may only under very narrow, precisely defined conditions punish speech that the government believes threatens public order.73 The “material supporters” of Humanitarian Law Project, like the communists of Dennis, aggressively challenge an important part of their era’s dominant national security consensus. We’ll see in Part III that the Roberts Court treats campaign finance laws as dire threats to core political speech. In contrast, just like the Dennis Court couldn’t conceive of the U.S. Communist Party’s Marxist-Leninist ideas as legitimate political discourse, Chief Justice Roberts practically mocks the Humanitarian Law Project’s plea that the material support law restricts political speech.74 For a Court focused on maintaining political stability and (p.49) preserving order, forceful dissent from the government’s national security policies doesn’t register as political speech. It registers as a threat.

Humanitarian Law Project reveals a Roberts Court that considers itself not bound—perhaps not even authorized—to enforce the First Amendment when the government asserts national security interests to justify suppressing speech. Indeed, the Court’s conservative majority later held 5-4 that it lacked jurisdiction to hear another important First Amendment case about national security.75 Given our government’s ongoing and open-ended “war on terror,” this extreme deference to the government on national security marks one of the Roberts Court’s most important contributions to First Amendment law. Humanitarian Law Project casts expressive association with foreign people and groups in our increasingly global culture as something to fear rather than celebrate.76 An influential constitutional law professor, the University of Chicago’s Eric Posner, has advocated criminalizing even the accessing of websites that “glorify, express support for, or provide encouragement for” the Islamic State terrorist group, in order to “protect people … from being infected by the ISIS virus by propagandists.”77 Humanitarian Law Project might not fully justify such a law, but the decision provides the intellectual raw material for Posner’s speech-restrictive reasoning.

Chief Justice Roberts denies any implication in Humanitarian Law Project “that any future applications of the material-support statute to speech or advocacy [or] any other statute relating to speech and terrorism would satisfy the First Amendment.”78 As we’ve seen, however, the chief justice based his majority opinion on broad principles: the fungibility of speech and violence, the propriety of suppressing speech to control the public’s political views, and the necessity of suppressing speech to avoid offending U.S. allies. David Cole, who argued the Humanitarian Law Project’s case before the Supreme Court, has tried to minimize the decision’s importance as precedent. He cites three factors that Chief Justice Roberts claims to limit the decision: the government had a national security interest, the speakers sought to coordinate their (p.50) speech with terrorist groups, and the terrorist groups were foreign rather than domestic.79 My Armenian Bar Association story, however, illustrates how even mild political dissent about international issues may involve coordination with foreign nationals and trigger zealous national security objections. The chief justice also makes no promise that the Court will require all three limiting factors to intersect before it extends the decision to justify future bans on expression.

The speech-restrictive decision in Humanitarian Law Project matters a lot more than the speech-protective decision in Snyder v. Phelps. Snyder held quite narrowly that a court may not make protesters, engaged in a very orderly (though uncivil) protest about an obviously political topic, liable for intentional infliction of emotional distress. Humanitarian Law Project reveals the strict limits of the First Amendment protection Snyder grants to political dissent. Where dissent doesn’t just make rude noise but threatens the ordered structures of national security, the Roberts Court lets the government define the boundaries of acceptable expression. In the name of social and political stability, this Court effectively grants the government managerial control over public discussion.

Prioritizing Speech for Profit

The failure of Humanitarian Law Project to protect serious political dissent contrasts sharply with another Roberts Court decision that balances private speech interests against government regulatory priorities. Sorrell v. IMS Health, Inc. (2011)80 deals not with political activism but with commercial sales practices. Pharmaceutical drugs make more money for their manufacturers during the limited time when patents protect the drugs from generic competitors. To get doctors to prescribe particular drugs, especially the more expensive patented ones, manufacturers send representatives to doctors’ offices to talk up their products. Medical industry jargon calls these sales visits “detailing.” Like any sales pitch, detailing works a lot better if the detailers know their audience. They want to know what drugs the doctors they visit have prescribed in the past. That’s where pharmacies and data miners enter the picture. Federal law requires pharmacies to keep records of the prescriptions they fill. Pharmacies, and sometimes health insurance companies, sell data miners information about which doctors prescribe which drugs (“prescriber-identifying information”). The data miners create reports (p.51) on which drugs particular doctors prescribe, and they sell those reports to drug makers, whose detailers use the reports to shape their sales pitches to the doctors. Detailers might persuade doctors to prescribe consumers the best, least expensive drugs. Then again, they might persuade doctors to prescribe drugs that cost more money than generic alternatives or don’t best fit patients’ medical needs. Detailers, after all, don’t work for consumers. They work for drug makers, who want to maximize profits.

Vermont was one of several states that didn’t like detailing’s downside for consumers. State regulators worried that detailing, greased by prescriber-identifying information, was eroding medical privacy and driving up drug prices. Accordingly, the state passed a statute, the Prescription Confidentiality Law,81 that barred pharmacies and insurers from selling prescriber-identifying information, barred pharmacies and insurers from letting prescriber-identifying information be used for marketing, and barred drug makers and detailers from using prescriber-identifying information for marketing (with all these restrictions waivable if a doctor consented). The law made clear that its restrictions did not apply to uses other than marketing, such as healthcare research, education, and law enforcement. Not surprisingly, the various players in the detailing game—the pharmacies and insurers who sell prescriber-identifying information in the first place; the data miners who buy, analyze, and resell the information; and the drug makers who use the information for detailing—disliked the law intensely. Several of them challenged it as a violation of their First Amendment rights. The Roberts Court in IMS Health sustained the challenge and struck down the Vermont law.

Two background legal doctrines help situate the IMS Health decision. The first concerns not the First Amendment but the Court’s general approach to government regulations of business. At the turn of the last century, as the industrial revolution hummed along, states had begun to put limits on various employment practices: minimum wage and maximum hour mandates, allowances for union organizing, workplace safety rules, and so on. In a series of decisions, the Supreme Court struck down a significant number of such state laws. The Court proclaimed that the Constitution’s Fourteenth Amendment, which broadly states that “[n]‌o state shall … deprive any person of life, liberty, or property, without due process of law,”82 barred states from interfering with the rights of employers and workers to contract freely about working conditions. The key decision in Lochner v. New York,83 which struck down a law that limited the hours bakeries could make their employers work, gives this period of constitutional bars on business regulations its name: the Lochner era. The era ended with a thud. During the Great Depression, most people (p.52) realized that forbidding state regulations of business had contributed to the economic collapse. The Supreme Court, in its most abrupt and one of its most important reversals of course, repudiated Lochner. The Court admitted that it had made two huge mistakes. First, it shouldn’t have used a constitutional provision as vague as the due process clause to block the people’s representatives from making public policy. Second, it shouldn’t have scuttled government efforts to regulate business in the public interest.84 Since then, conservatives and liberals alike have condemned “Lochnerism” as the archetype of judicial overreaching.85

The other legal doctrine that informs IMS Health is the Supreme Court’s special approach to “commercial speech” under the First Amendment. For decades the justices assumed that commercial advertising got no First Amendment protection at all.86 In 1976, however, they changed course. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.87 acknowledged that commercial speech, defined as speech that “does no more than propose a commercial transaction,” provides socially valuable information.88 At the same time, the Court recognized that the government sometimes has valid reasons for regulating commercial speech.89 The justices therefore put commercial speech in a unique First Amendment category. It gets constitutional protection, unlike obscenity or fighting words, but it doesn’t get full protection. In Central Hudson Gas & Electric Corporation v. Public Service Commission of New York,90 the Court announced that it would review commercial speech regulations under an “intermediate scrutiny” standard (the sort of flexible standard Justice Breyer advocated in his Alvarez concurrence).91 Under the doctrine of Virginia Pharmacy and Central Hudson, the Court has struck down (p.53) commercial speech regulations that sought to influence consumers through enforced ignorance.92

The Lochner era and the commercial speech doctrine converge because First Amendment limits on commercial speech regulations might seem to resurrect Lochner. When the Court strikes down a commercial speech regulation, it bars the government from regulating business, just as Lochner did. First Amendment protection for commercial speech, however, differs from Lochner in several important ways. The First Amendment protects something particular—speech—whereas the broad language of the due process clause let the Lochner Court bar any business regulation it didn’t like. The Central Hudson intermediate scrutiny standard, by giving government regulators some leeway, further limits the range of regulations the Court may strike down. Most importantly, at least some First Amendment checks on commercial speech regulation advance the public interest by ensuring consumers’ access to commercial information. IMS Health presents the important question whether the public interest justifies states in regulating drug detailing or, instead, compels the Court to protect detailing.

Justice Kennedy’s opinion for the Court holds that Vermont’s law impermissibly discriminated against detailing.93 He firmly rejects Vermont’s argument that its law regulated only business conduct and not speech. Business regulations may incidentally restrict speech without violating the First Amendment, as when a fair hiring law forbids employer from posting “whites only” signs. Vermont’s law, however, used the messages and identities of certain speakers—detailers—as the basis for its restrictions.94 Justice Kennedy accepts for the sake of argument that all the law regulates is commercial speech.95 Even so, Vermont loses. The state offered two sets of justifications for the law. First, the law protected the privacy and integrity of the doctor-patient relationship. It kept records private, insulated doctors from hard sell tactics, and prevented interference with doctors’ decisions about which drugs to prescribe. Justice Kennedy rejects these privacy justifications because the law’s exceptions allow people other than detailers, such as academic researchers, to get and use prescriber-identifying information. He rejects the undue influence argument as anathema to free speech: “If pharmaceutical marketing affects treatment decisions, it does so because doctors find it persuasive.”96 Second, Vermont argued that the law, by making detailing less effective, lowered medical costs and promoted public health. Justice Kennedy allows that the state’s desire to make medical care less expensive and more effective “may (p.54) be proper.” Pursuing that desire by hampering speech, however, is not. Only “free and uninhibited speech” may resolve the “debate” about which drugs doctors should prescribe.97

Justice Kennedy hedges his analysis on two important points. First, IMS Health harbored a separate First Amendment issue with potential to overshadow the commercial speech question: whether buying and selling data flows such as prescriber-identifying information should get First Amendment protection.98 Justice Kennedy implies that data flows themselves amount to speech.99 The Vermont law’s supposed discrimination against detailers, however, lets him resolve the case without squarely deciding whether and to what extent the First Amendment protects trade in data flows.100 Second, Justice Kennedy does not make clear whether the Vermont law discriminates only against the content of certain speech or more narrowly against a particular viewpoint. If he means to say the law singles out only content, he has a problem: the commercial speech doctrine, unlike ordinary First Amendment law, permits greater regulation of commercial speech because of its content. If he means to say the law singles out a viewpoint, something even the commercial speech doctrine prohibits, he has a different problem: drug makers’ desire to maximize profit from patented drugs seems hard to construe as a point of view. By mostly avoiding the term “viewpoint-based restrictions” but repeatedly accusing Vermont of making “speaker-based restrictions,” which isn’t a term of art in First Amendment law, Justice Kennedy tries to weave a path between these two pitfalls.101

Justice Breyer’s Sorrell dissent views the Vermont law through a completely different lens from the majority. He sees the law’s “effect on expression” as “inextricably related to a lawful government effort to regulate a commercial enterprise.”102 Invoking the First Amendment to micromanage government (p.55) regulations of commerce, he charges, replicates the mistake of Lochner.103 The fact that the law affects a particular sort of speech—detailing—makes no legal difference for Justice Breyer, because all commercial regulations target particular commercial conduct. In any event, the prescriber-identifying information at issue only exists because government regulations require it. By further regulating the information’s use, Vermont merely seeks to control government resources.104 Even if the Vermont law did regulate speech, Justice Breyer contends, it should easily pass Central Hudson review. The law imposes only minor burdens on commercial speech.105 The state has substantial, speech-neutral interests in protecting public health and privacy. Justice Breyer chides the majority for imagining (even) less speech-restrictive ways Vermont could have pursued those interests, rather than deferring to Vermont’s reasonable policy decision to restrain detailing.106

For a detailer to talk with a doctor about a drug’s attributes is plainly speech. Formally, Justice Breyer’s call for deference to Vermont’s policy judgment about detailing echoes Chief Justice Roberts’s call for deference in Humanitarian Law Project. A great many business regulations restrict speech—think of corporate disclosure requirements, or limits on employers’ freedom to discourage union organizing—and we can’t just wish those regulations out of First Amendment arguments by pretending they regulate only conduct or commerce.107 Virginia Pharmacy, however, set forth an animating principle for First Amendment protection of commercial speech: consumers should have all available information for making commercial decisions.108 That focus on consumer information keeps commercial speech protection from crossing into Lochner territory. IMS Health isn’t about open-market communication between businesses and consumers. Rather, it’s about closed-door communication between drug makers and doctors. Vermont’s law did not stop any information from reaching consumers. Yes, detailing is speech, but it isn’t a sort of speech the Court has ever before shielded from government regulations designed to protect public health.109 What’s new and important about (p.56) IMS Health is that the Court, for the first time, has struck down a commercial speech regulation solely to protect businesses’ ability to maximize profits. That shift takes the treatment of speech as an economic commodity, visible both in Chapter 1’s copyright extension case Golan v. Holder and in the “fungibility” reasoning of Humanitarian Law Project, to a new level. It could portend a future move to protect commercial speech broadly and strictly, without regard to consumers’ informational interests.

Vermont restrained detailing largely to advance medical privacy. The Court dismisses that interest as a mere pretext for censorship: the state couldn’t possibly care about privacy, Justice Kennedy insists, because it allowed researchers and educators to access prescriber-identifying data. Vermont, however, decided that a chain of profit-minded sellers, resellers, and marketers would take less care to preserve medical privacy than researchers and educators.110 Certainly privacy concerns can lead to improper speech restrictions. Snyder v. Phelps stands for the principle that not even the intimacy of a family’s grief should justify barring political protests. Recall, however, the Snyder Court’s suggestion that states properly may keep funeral protesters outside reasonably drawn “buffer zones.” If we don’t grant funerals some measure of privacy, the protesters’ message will simply drown out the mourners’ message. In this sense, privacy needn’t be the enemy of speech; rather, privacy in an important sense is a precondition for speech.111 IMS Health only indirectly implicated consumers’ privacy, because the data in the case explicitly identified only doctors, not patients. Still, the Court’s dismissal of Vermont’s privacy argument on grounds of anti-commercial discrimination could justify subordinating privacy interests to commercial profit motives in future cases.

Vermont also wanted to stop what we might call the “medical-data complex” of drug makers, pharmacies, data miners, and ultimately doctors from exploiting consumers’ information deficit to extract more of their money. The Vermont legislature found that discussion about which drugs doctors should prescribe “is frequently one-sided in that brand-name companies invest in expensive pharmaceutical marketing campaigns to doctors.”112 Detailing, by circulating information above consumers’ heads, denies people the power to participate autonomously in discussions about their medical care. Even if good policy reasons justified that denial, why should the First Amendment shield it against a state’s contrary policy judgment? Notwithstanding Justice Kennedy’s pronouncement that “in the fields of medicine and public health … information can save lives,”113 IMS Health appears to save nothing but drug makers’ profits.

(p.57) The Roberts Court’s only other commercial speech decision, Milavetz, Gallop & Milavetz v. United States (2010),114 upholds two narrow speech restrictions in the federal Bankruptcy Code. Justice Sotomayor wrote the majority opinion, her first free speech opinion after replacing Justice Souter on the Court and one of the few she has written to date. The decision first rejects overbreadth and vagueness challenges to a bankruptcy law that bars debt relief agencies from advising their clients to incur more debt prior to a bankruptcy filing.115 The Court then employs a lenient standard of review, which lets the government compel disclosure of commercial information to avoid misleading consumers,116 to uphold a second bankruptcy law that makes debt relief agencies state in their advertisements that they are, in fact, debt relief agencies.117 Milavetz sits at an intersection of Alvarez (Chapter 1) and IMS Health: it makes clear that the First Amendment does not protect commercial lies. In reaching that conclusion, the decision breaks no new ground. The Court’s commercial speech doctrine has always denied First Amendment protection to false and misleading advertisements.118 In addition, the justices usually show little patience when members of their own profession try to hide shifty business practices behind the First Amendment.119

Signs and Signifiers

The Roberts Court’s most recent decision that balances protected speech against government regulation, Reed v. Town of Gilbert (2015),120 is so simple that it’s confounding. Reed strikes down a municipal rule that governs the (p.58) size, number, and location of outdoor signs. Gilbert, Arizona, like many municipalities, had a sign rule that distinguished among signs based on what the signs announced or advertised. “Ideological signs” could be up to 20 square feet in size and displayed anywhere in town without time limits. “Political signs,” designed to influence elections, could only be 16 square feet on residential property (larger in some other settings) and displayed only 60 days before and 15 days after an election. “Temporary directional signs related to a qualifying event”—meant to guide people to an event or meeting—could only be six square feet, with no more than four signs posted at once on a single property, and displayed only for 12 hours before and one hour after the event. The Good News Community Church, a small Christian group that had no church building, placed signs around Gilbert inviting people to the various, irregular places where the group held services. The town enforced its sign law stringently against the church. The church challenged the law, claiming that Gilbert violated the church’s First Amendment rights by regulating “temporary directional signs” more harshly than other kinds of signs.

Justice Thomas’s majority opinion restates and enforces the most familiar rule of First Amendment speech doctrine: when the government regulates speech based on the speech’s content, the Court subjects the regulation to strict scrutiny. Justice Thomas explains that Gilbert’s law, by making differential rules for signs with different messages, facially discriminated based on content. One need only read the law to see the discrimination. Gilbert’s assertion that the town held no animus against temporary directional messages doesn’t matter, nor does the fact that the law didn’t discriminate against specific viewpoints.121 In the strict scrutiny analysis, Gilbert claimed that it distinguished among categories of signs to promote traffic safety and the town’s aesthetic appeal. Justice Thomas assumes, without deciding, that both of those interests rise to the “compelling” level, but he finds the law insufficiently tailored to satisfy strict scrutiny. Many kinds of signs, he explains, could cause traffic problems or dampen aesthetic appeal, and nothing about the Gilbert law’s content distinctions tracks either interest.122

Nothing in Justice Thomas’s opinion seems at all remarkable. Why, then, did six justices see the need to express caveats of varying intensity? At one level, the hubbub simply reflects the practical importance of sign regulations. Signs appear all over, nearly all governments regulate them, and the Gilbert Court’s firm adherence to content neutrality may undermine many of those regulations. Justice Thomas promises that “[o]‌ur decision today will not prevent governments from enacting effective sign laws.” He points out that governments may still pursue safety and aesthetic interests by regulating signs’ “size, building materials, lighting, moving parts, and portability”; by broadly (p.59) restricting signs on public property; and by carefully tailoring preferences for warning, directional, and identification signs in ways that satisfy strict scrutiny.123 Justice Alito, concurring for himself and Justices Kennedy and Sotomayor, adds an uncommonly direct (and, for regulators, no doubt very welcome) laundry list of permissible, content-neutral bases on which governments may regulate signs, including (among others) placement on public as opposed to private property, commercial as opposed to residential signs, and total numbers of signs per mile of roadway. Justice Alito also underscores the government’s broad latitude to post signs that express its own messages (flashing the theme of “government speech” that will figure prominently in several cases in Part II).124

At a deeper level, the tensions in Gilbert reflect long-standing debates about both the coherence125 and the desirability126 of a strict content neutrality requirement. Justice Kagan, concurring in the Court’s result but not its reasoning for a more skeptical trio that includes Justices Ginsburg and Breyer, contends that demanding strict content neutrality raises both analytic and normative problems. Analytically, Justice Kagan picks apart Justice Alito’s assertion that regulators may safely impose time limits on signs that advertise one-time events. Such a regulation, she notes, distinguishes speech based on subject matter and therefore violates the majority’s rule against content discrimination.127 Even figuring out what counts as content neutrality can present a major problem. (We’ll see the Court wrestle with that same problem in the context of antiabortion clinic activism in Chapter 4.) Normatively, Justice Kagan warns that cities will either have to repeal laws that favor helpful street and residential signs or else learn to live with signs run amok. The likely travails of regulating signs under the majority’s strict requirement of content neutrality, she predicts, may force the Court to sit as “a veritable Supreme (p.60) Board of Sign Review.”128 That Supreme Board, she implies, may lack the courage of the Supreme Court’s content neutrality convictions.

Justice Kagan and Justice Breyer, who contributes his own solo concurrence in the judgment, contend that the strong presumption against content-based regulations has both laudable uses and appropriate limits. Justice Breyer attacks the workability and internal coherence of a strict content neutrality requirement. We’ve seen, especially in considering the child pornography pandering case United States v. Williams (Chapter 1), the persistence of tacit limitations on the First Amendment’s coverage. Justice Breyer invokes those limitations to indict the Gilbert majority’s insistence on strict content neutrality. Securities disclosure rules, labeling requirements for consumer products, doctor-patient confidentiality mandates—all of these and more, he suggests, would need to satisfy strict scrutiny or else fall under the majority’s approach.129 The Court could save such laws, as Justice Thomas suggests it might save carefully crafted content-based sign laws, by “watering down” strict scrutiny, but that would hamper First Amendment law’s ability to combat more pernicious speech restrictions.130

Although Justices Kagan and Breyer rebuke Gilbert’s discriminatory sign law, both maintain that many common, content-based sign restrictions, such as allowing illumination of home address numbers but not of other residential signs, raise no serious First Amendment issues. Justice Kagan would mandate content neutrality only where content-discriminatory laws either evince viewpoint discrimination or remove important ideas from public discussion.131 The Gilbert sign law, she says, fails “even the laugh test.”132 Justice Breyer, following his approach from IMS Health and last chapter’s military honors case Alvarez, would strike down the law because it “works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives.”133

Many sign disputes present questions about the availability of government property for sign placements. Although Gilbert arose as a general challenge to a sign regulation, the case points toward concerns distinctive to speech on government property. Those concerns, which also lay in the (p.61) background of Snyder v. Phelps, will take center stage in Chapter 4’s discussion of the public forum doctrine. Government property, as a source of expressive opportunities, holds special importance for marginal and underfinanced speakers, who tend to lack private expressive resources. Both Justice Thomas’s majority opinion in Gilbert and Justice Alito’s concurrence emphasize the government’s power to restrict signs on its own property. Even as Justice Thomas acknowledges the special value of signs as an expressive medium for underfinanced speakers,134 he favorably cites a past decision that disregarded a seemingly neutral law’s disparate impact on socially marginal speakers and ideas.135 In contrast, although Justice Breyer’s and Justice Kagan’s rejections of strict content neutrality might seem less speech-protective than the Gilbert majority, their opinions expressly advocate opening public discussion to marginal and underfinanced speakers. Justice Breyer singles out public forum cases as a distinctly appropriate context for applying a presumption that content-based speech restrictions violate the First Amendment.136 Justice Kagan urges applying content analysis instrumentally, “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”137 In Chapter 4 we’ll see the Roberts Court—led by its liberal wing—weaken the public forum as a source of expressive opportunities. Justices Breyer and Kagan in Gilbert express some sympathy in the other direction.

Gilbert should aid challengers to other sign ordinances that replicate Gilbert’s blunt content discrimination. The decision’s broader impact is hard to predict. We might read the case as a mundane recitation of First Amendment boilerplate in the workaday context of sign laws, a reminder of the Court’s content neutrality principle that doesn’t disturb the many established exceptions and hedges. On the other hand, the case may represent a bold new commitment to ferreting out content discrimination wherever it occurs. Elements of Justice Thomas’s analysis, such as the statement that laws “defining regulated speech by its function or purpose”138 impermissibly discriminate against the content of speech, could harden into a more stringent mode of review for future cases. In that event, Justices Breyer and Kagan’s practical concerns might loom large, as judges confronted both the analytic problems of identifying content discrimination and the fraught choice between striking down innocuous content-based regulations and weakening strict scrutiny.

(p.62) Conclusion

The balancing cases discussed in this chapter, taken together, fuel the managed speech account of the Roberts Court’s First Amendment. Snyder reinforces the First Amendment’s vital protection for speech about matters of public concern. Gilbert likewise speaks in strongly speech-protective terms about content neutrality. Those two decisions, despite their uncertain impact, seem committed to about promoting broad, inclusive public discussion. However, the two other major cases discussed in this chapter belie that commitment. Chief Justice Roberts’s opinion in Humanitarian Law Project delivers what may be the Supreme Court’s strongest blow against First Amendment protection for political dissent since the Dennis communist advocacy decision 65 years ago. Where Snyder declares the importance of open public debate, Humanitarian Law Project passively defers to federal officials who condemn dissent as a threat to national security. Congress, the chief justice tells us, may presume that pacifist advice to terrorists will inevitably advance their violent methods, may ban speech that “legitimates” terrorism, and may suppress domestic political expression to avoid offending foreign allies. Humanitarian Law Project epitomizes managed speech. It empowers a responsible institution, here the government, to manage public debate; it disregards and even denigrates the expressive interests of political dissenters who threaten to disrupt established power structures; and it strongly prioritizes the preservation of social and political order.

Sorrell v. IMS Health, like Snyder and unlike Humanitarian Law Project, sustains a First Amendment claim. IMS Health, though, substantially diverges from Snyder. Whereas the Court in Snyder invokes the First Amendment to protect public debate, IMS Health has nothing to do with public discussion or public information. Instead, the decision commodifies speech to protect the narrow interest of a specific group of commercial actors, an interest directed solely toward commercial profit. By shielding drug detailing from government regulation, the Court empowers commercial actors to decide which drugs become available, without consumers’ knowledge or input. Like last chapter’s copyright case Golan v. Holder, IMS Health follows a rigid public-private distinction to ignore a collision between opposed expressive interests. Both decisions portray more economically powerful speakers as censorship’s victims and dismiss less economically powerful speakers as censorship’s undeserving constituents. Just as Golan and Humanitarian Law Project let the government manage public discussion, deciding whether and how information may flow, IMS Health lets a class of commercial actors do so.

These first two chapters show the primacy of economic power in the Roberts Court’s First Amendment. The Supreme Court during the Lochner era used constitutional law to replace legislative ordering of social and economic affairs (p.63) with ordering by economic market forces. The Roberts Court, likewise, appears to conceive of public discussion as an economic sphere that powerful market actors can and should manage.139 All of this Court’s private speech decisions that touch commercial matters, whether the decisions protect speech (Stevens, Entertainment Merchants, IMS Health) or restrict it (Golan), validate the market’s authority to decide the value of different kinds of speech. Meanwhile, the Roberts Court’s most notable case about political dissent, Humanitarian Law Project, insulates the economic and political status quo from serious disruption. The other political dissent cases give trivial distractions a pass. Xavier Alvarez, the Phelps Church, and the Good News Community Church posed no serious threat to established order, and the Court validated their free speech rights in decisions that work minimal changes in established law. In contrast, the Humanitarian Law Project threatened national security, the very cornerstone of established order, and the Court rejected its First Amendment claim. Under the Roberts Court’s First Amendment, anchors of economic order win, while threats to political order lose.

A shift in the Court’s First Amendment orientation from managed speech to dynamic diversity would change more results in this chapter’s cases than in last chapter’s. Dynamic diversity would validate Snyder while focusing more attention on the conflict between the expressive interests of military funeral mourners and the Phelps Church. Likewise, a dynamic diversity opinion in Gilbert would firmly reject Gilbert’s sign ordinance while considering whether some forms of government content regulation might promote, rather than retard, robust public discussion. A dynamic diversity take on Humanitarian Law Project, however, would completely scrap the Roberts Court’s decision. The humanitarian groups in that case are paladins of dynamic diversity’s ambitions to maximize the range of ideas and participants in public discussion. Those groups sought to challenge the government’s authority over national security, a magnet for uncritical public consensus and obedience. The government may properly use a range of powers to discourage and punish violent conduct, but dynamic diversity extols the democratic value of protecting even, especially, the most disturbing, potentially destabilizing speech. As for IMS Health, dynamic diversity recognizes no positive basis for protecting data (p.64) mining against selective state regulation in the commercial sphere. Dynamic diversity generally calls for aggressive judicial enforcement of the First Amendment, but sometimes no good reason justifies intervention.

Three hallmarks of managed speech emerge from these first two chapters: empowering stable, responsible institutions to manage speech, disfavoring marginal or disruptive speakers, and ensuring that First Amendment law preserves, rather than threatens, social and political stability. These three elements permeate the Roberts Court’s free speech jurisprudence. The next three chapters, which deal with speech that uses various sorts of government resources to reach its audience, will sharpen our view of managed speech in action.

Notes:

(1.) The phenomenon of “uncovered” speech, discussed last chapter in connection with the Williams decision, marks a blind spot in the presumption of speech protection. For a rich discussion of the relationship between the categorical and balancing aspects of First Amendment law, see Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. REV. 375 (2009).

(2.) Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

(3.) See Alexander Meiklejohn, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE (1960).

(4.) Evelyn Beatrice Hall, THE FRIENDS OF VOLTAIRE 199 (1906).

(5.) 562 U.S. 443 (2011). Roberts (majority) (with Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, Kagan); Breyer (concurring); Alito (dissenting).

(6.) 376 U.S. 254 (1964).

(7.) Id. at 270. Sullivan lets a public official win a defamation case only if he can show the defamatory speaker acted with “actual malice,” meaning “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 280.

(8.) See Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967).

(9.) 485 U.S. 46 (1988).

(10.) Snyder, 562 U.S. at 451.

(11.) See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563 (1968) (public employee speech); Fla. Star v. B.J.F., 491 U.S. 524 (1989) (newspaper’s publication of sexual assault victim’s name).

(12.) Snyder, 562 U.S. at 458. Chief Justice Roberts also rejects Albert Snyder’s distinct tort claim of “intrusion upon seclusion,” invoking the First Amendment principle that people who find a public display offensive can cure their distress by averting their eyes. See id. at 459–60.

(13.) See Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974).

(14.) Snyder, 562 U.S. at 464 (Alito, J., dissenting); see also Steven J. Heyman, To Drink the Cup of Fury: Funeral Picketing, Public Discourse, and the First Amendment, 45 CONN. L. REV. 101, 151 (2012) (arguing that the Court should freely weigh speech rights against other rights related to “individual personality,” including “rights to emotional well-being, dignity, privacy, and religious liberty”).

(15.) Snyder, 562 U.S. at 457.

(16.) See id. at 463–64 (Alito, J., dissenting).

(17.) 315 U.S. 568 (1942), cited in Snyder, 562 U.S. at 465 (Alito, J, dissenting).

(18.) See also Heyman, supra note 14, at 143–44 (acknowledging that some complaints about injuries from speech “are merely subjective and exist in the eye of the beholder” but offering only “common sense and experience” as tools for winnowing such trivial claims from the weighty interests he would allow to trump free speech).

(19.) See Robert C. Post, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 147–48 (1995).

(20.) A good example is Virginia v. Black, 538 U.S. 343 (2003), which considered a First Amendment challenge to a state law that banned cross burning as a tool of intimidation. A plurality of the Court in that case found the law broadly permissible under the First Amendment’s categorical exclusion of “true threats” but rejected the law’s way of distinguishing threatening cross burning from merely expressive cross burning.

(21.) See Gregory P. Magarian, The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate, 73 GEO. WASH. L. REV. 101 (2004).

(22.) For an argument that the Snyder Court placed too much emphasis on the public concern idea, see Vikram D. Amar & Alan Brownstein, The Voracious First Amendment: Alvarez and Knox in the Context of 2012 and Beyond, 46 LOY. L.A. L. REV. 491, 521–23 (2013).

(23.) Mark Tushnet objects to the Snyder result on this basis. See Mark Tushnet, IN THE BALANCE: LAW AND POLITICS ON THE ROBERTS COURT 232 (2013). For a discussion of whether the victims of harmful speech should bear its costs, see Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. REV. 1321 (1992).

(24.) See, e.g., Cox v. Louisiana, 379 U.S. 536, 550 (1965) (overturning civil rights marchers’ convictions for “disturbing the peace” where police on the scene “could have handled the crowd”).

(25.) The fact that the Phelps protesters spoke from public property connects Snyder with the “public forum” cases that I discuss in Chapter 4. That fact, however, played only a minimal role in the Snyder Court’s analysis, which mainly treated the protest as private speech. See Snyder v. Phelps, 562 U.S. 443, 456 n.4 (2011).

(26.) See id. at 448–49.

(27.) See id. at 456–57. One can make a strong argument that carefully drawn laws allowing buffer zones around funerals shouldn’t violate the First Amendment. Funerals express ideas as surely as protests do. The government may properly allocate expressive space among diverse speakers, as long as the allocation doesn’t restrict speech opportunities or disfavor particular speakers or ideas. See, e.g., Cox v. New Hampshire, 312 U.S. 569 (1941) (upholding a nondiscriminatory permit requirement for parades on public streets).

(28.) Snyder, 562 U.S. at 460.

(29.) See id. at 449 n.1. Justice Alito objected in vain that “[t]‌he protest and the epic are parts of a single course of conduct.” Id. at 469 n.15 (Alito, J., dissenting).

(30.) Id. at 460. Commentators generally agree. See Alan Brownstein & Vikram D. Amar, Afterthoughts on Snyder v. Phelps, 2011 CARDOZO L. REV. DE NOVO 43; Clay Calvert, Too Narrow of a Holding? How—and Perhaps Why—Chief Justice John Roberts Turned Snyder v. Phelps Into an Easy Case, 64 OKLA. L. REV. 111 (2012).

(31.) See Snyder, 562 U.S. at 461 (Breyer, J., concurring).

(32.) See id. at 456–57.

(33.) See John D. Inazu, Factions for the Rest of Us, 89 WASH. U. L. REV. 1435, 1454 (2012) (“It costs us little to protect deeply offensive but politically irrelevant groups like the Westboro Baptists.”).

(34.) Abrams v. United States, 250 U.S. 616, 628–29 (1919) (Holmes, J., dissenting).

(35.) 341 U.S. 494 (1951).

(36.) See id. at 497–98.

(37.) See id. at 506–08.

(38.) See id. at 517, 525–26 (Frankfurter, J., concurring in the judgment).

(39.) 395 U.S. 444 (1969).

(40.) See John D. Inazu, LIBERTY’S REFUGE: THE FORGOTTEN FREEDOM OF ASSEMBLY 51 (2012).

(41.) See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). I discuss the affinity of Bork’s theory with the Roberts Court’s First Amendment in Chapter 9.

(42.) See 8 U.S.C. § 1189(a)(1), (d)(4) (2004).

(43.) 18 U.S.C. § 2339B(a)(1) (2015).

(44.) 18 U.S.C. § 2339A(b)(1) (2009).

(45.) 561 U.S. 1 (2010). Roberts (majority) (with Stevens, Scalia, Kennedy, Thomas, Alito); Breyer (dissenting) (with Ginsburg, Sotomayor).

(46.) See id. at 16–18. In this respect, Humanitarian Law Project represses speech even more aggressively than Dennis did. The Dennis Court held that the law under which the government convicted the Communist Party leaders required the government to show that they specifically intended for their advocacy to bring about violent revolution. See Dennis, 341 U.S. at 499–500 (plurality opinion). Justice Breyer, dissenting in Humanitarian Law Project, advocates something close to a “specific intent” construction of the material support law. See Humanitarian Law Project, 561 U.S. at 55–60 (Breyer, J., dissenting).

(47.) See Humanitarian Law Project, 561 U.S. at 23–24. This distinction between independent and coordinated activity also plays an important role in campaign finance law (discussed in Chapters 7 and 8). See FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) (upholding federal limits on political parties’ campaign spending coordinated with candidates).

(48.) See Humanitarian Law Project, 561 U.S. at 18–25. All nine justices agreed that the law was not unconstitutionally vague. See id. at 40 (Breyer, J., dissenting).

(49.) See United States v. O’Brien, 391 U.S. 367 (1968). Chapter 4 discusses the O’Brien standard in more detail, in connection with the Roberts Court’s public forum decisions.

(50.) See Humanitarian Law Project, 561 U.S. at 27.

(51.) The government has beaten free speech claims under strict scrutiny in three other Supreme Court cases, but all three come with big asterisks. Burson v. Freeman, 504 U.S. 191 (1992), (plurality opinion) upheld a Tennessee law that barred political activities within 100 feet of polling places, but only a plurality of the justices thought strict scrutiny applied in that case. Similarly, a plurality of the Roberts Court has held that a state law regulating electoral fundraising by judges satisfied strict scrutiny in Williams-Yulee v. Florida Bar (discussed in Chapter 8). Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990), upheld under strict scrutiny a state law that banned corporate and union expenditures in election campaigns, but the Roberts Court overruled Austin in Citizens United v. FEC (discussed in Chapter 7).

(52.) Humanitarian Law Project, 561 U.S. at 28.

(53.) Id. at 30.

(54.) Id.

(55.) Id. at 32.

(56.) See id. at 47–48 (Breyer, J., dissenting).

(57.) See id. at 42–43 (Breyer, J., dissenting).

(58.) W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

(59.) See, e.g., Near v. Minnesota, 283 U.S. 697 (1931).

(60.) See Humanitarian Law Project, 561 U.S. at 52 (Breyer, J., dissenting).

(61.) See id. at 31–32.

(62.) See id. at 39–40.

(63.) Lower courts have applied Humanitarian Law Project in ways that seriously undermine expressive association. See Ashutosh Bhagwat, Terrorism and Associations, 63 EMORY L.J. 581, 591–611 (2014).

(64.) See, e.g., Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992) (striking down a permit system that required demonstrators to pay different costs for police to protect their gatherings depending on audience hostilities).

(65.) Humanitarian Law Project, 561 U.S. at 33.

(66.) Dink pointedly declared during the discussion that he opposed a French law banning genocide denial as firmly as the Turkish law banning genocide recognition. Four months after our meeting, back home in Istanbul, he was assassinated. See Turkish Court Sees Conspiracy in Journalist’s Death (Reuters), N.Y. TIMES, May 15, 2013, at A9.

(67.) Humanitarian Law Project, 561 U.S. at 33.

(68.) Id. at 34 (internal quotation marks and citations omitted).

(69.) See id. at 35 (“We also find it significant that Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns.”).

(70.) Id. at 38.

(71.) 403 U.S. 713 (1971).

(72.) See Canadian Journalists for Free Expression, Snowden Archive, http://www.cjfe.org/snowden (last visited April 19, 2016).

(73.) The pressures of the “war on terror” strained Brandenburg even before Humanitarian Law Project. See Thomas Healy, Brandenburg in a Time of Terror, 84 NOTRE DAME L. REV. 655 (2009).

(74.) See Humanitarian Law Project, 561 U.S. at 25–26. On the tension between Humanitarian Law Project and the Roberts Court’s campaign finance decisions, see Aziz Z. Huq, Preserving Political Speech from Ourselves and Others, 112 COLUM. L. REV. SIDEBAR 16 (2012).

(75.) When Congress passed a law that let the government surveil U.S. citizens’ communications with foreign nationals the government had linked to terrorism, a coalition of human rights, labor, media, and legal groups challenged the law’s constitutionality. The Court, in an opinion by Justice Thomas, held that the coalition lacked legal standing under Article III to pursue their case, because their fears of surveillance were too speculative to satisfy the requirement of a concrete injury. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013).

(76.) See Timothy Zick, The First Amendment in Trans-Border Perspective: Toward a More Cosmopolitan Orientation, 52 B.C. L. REV. 941 (2011).

(77.) Eric Posner, ISIS Gives Us No Choice but to Consider Limits on Speech, SLATE (Dec. 15, 2015), http://www.slate.com/articles/news_and_politics/view_from_chicago/2015/12/isis_s_online_radicalization_efforts_present_an_unprecedented_danger.single.html (last visited Jan. 6, 2016).

(78.) Humanitarian Law Project, 561 U.S. at 39.

(79.) See David Cole, The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine, 6 HARV. L. & POL’Y REV. 147 (2012).

(80.) 564 U.S. 552 (2011). Kennedy (majority) (with Roberts, Scalia, Thomas, Alito, Sotomayor); Breyer (dissenting) (with Ginsburg, Kagan).

(81.) VT. STAT. ANN., tit. 18, § 4631 (2007).

(82.) U.S. CONST. amend. XIV.

(83.) 198 U.S. 45 (1905).

(84.) See Nebbia v. New York, 291 U.S. 502 (1934).

(85.) See, e.g., Robert Bork, THE TEMPTING OF AMERICA (1997); Cass Sunstein, THE PARTIAL CONSTITUTION (1998). The occasional dissenter keeps the debate alive. See David Bernstein, REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM (2012).

(86.) See, e.g., Valentine v. Chrestensen, 316 U.S. 52 (1942).

(87.) 425 U.S. 748 (1976).

(88.) See id. at 762–65.

(89.) See id. at 770–72.

(90.) 447 U.S. 557 (1980).

(91.) The Central Hudson test states:

For commercial speech to [get any First Amendment protection], it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Id. at 566.

(92.) See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (striking down a ban on alcohol price advertising).

(93.) See Sorrell v. IMS Health, Inc., 564 U.S. 552, 563–64 (2011).

(94.) See id. at 566–67.

(95.) See id. at 571.

(96.) Id. at 576.

(97.) Id. at 578.

(98.) Compare, e.g., Ashutosh Bhagwat, Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy, 36 VT. L. REV. 855 (2012) (contending that courts probably will, but generally should not, treat data flows as protected speech) with Jane Bambauer, Is Data Speech?, 66 STAN. L. REV. 57 (2014) (arguing that courts generally should treat data flows as protected speech).

(99.) See IMS Health, 564 U.S. at 570.

(100.) For an extended discussion, see Neil Richards, INTELLECTUAL PRIVACY 79–84 (2015).

(101.) IMS Health, 564 U.S. at 563 (emphasis added). Only once does Justice Kennedy directly accuse Vermont of “aim[ing] at a particular viewpoint,” id. at 565, but that statement qualifies a claim that the law merely discriminates based on viewpoint “in its practical operation.” Id. (internal quotation marks and citation omitted). At another point Justice Kennedy similarly calls the law “content-based and, in practice, viewpoint-discriminatory.” Id. at 571 (emphasis added). These semantics matter, because the Court generally does not treat laws that suppress certain viewpoints only in practice, rather than on purpose, as discriminating impermissibly based on viewpoint. See, e.g., United States v. O’Brien, 391 U.S. 367 (1968).

(102.) IMS Health, 564 U.S. at 581 (Breyer, J., dissenting).

(103.) Justice Breyer twice invokes Lochner to attack the majority. See id. at 591–92, 602–03 (Breyer, J., dissenting).

(104.) See id. at 587–88 (Breyer, J., dissenting). The majority forcefully disputes this argument. See id. at 568–69.

(105.) Justice Breyer derides Justice Kennedy’s claim that the law discriminates against detailing, noting that no evidence supports the majority’s suggestion that Vermont would use the law to “counter-detail” inexpensive generic drugs. See id. at 594–95 (Breyer, J., dissenting).

(106.) See id. at 596–99 (Breyer, J., dissenting).

(107.) See Ernest A. Young, Sorrell v. IMS Health and the End of the Constitutional Double Standard, 36 VT. L. REV. 903 (2012).

(108.) See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 769–70 (1976).

(109.) See Tamara R. Piety, “A Necessary Cost of Freedom”? The Incoherence of Sorrell v. IMS, 64 ALA. L. REV. 1 (2012).

(110.) See TUSHNET, supra note 23, at 230.

(111.) See RICHARDS, supra note 100.

(112.) 2007 Vt. Acts & Resolves 80, § 1(4).

(113.) Sorrell v. IMS Health, Inc., 564 U.S. 552, 566 (2011).

(114.) 559 U.S. 229 (2010). Sotomayor (majority) (with Roberts, Stevens, Kennedy, Ginsburg, Breyer, Alito; with Scalia, Thomas (in part)); Scalia (concurring in part and concurring in the judgment); Thomas (concurring in part and concurring in the judgment). Justice Thomas wrote separately to argue, as he has elsewhere, that commercial speech should get full First Amendment protection. See id. at 255 (Thomas, J., concurring in part and concurring in the judgment). Justice Scalia wrote separately to scold then-newly arrived Justice Sotomayor for a single footnote in her opinion that violates his rule against using legislative history materials to interpret statutes. See id. at 253 (Scalia, J., concurring in part and concurring in the judgment).

(115.) See id. at 239–48 (discussing 11 U.S.C. § 526(a)(4) (2010)).

(116.) See Milavetz, 559 U.S. at 249–50 (citing Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)).

(117.) See Milavetz, 559 U.S. at 248–53 (discussing 11 U.S.C. § 528 (2008)).

(118.) See, e.g., Va. State Bd. of Pharmacy, 425 U.S. at 771–72.

(119.) See, e.g., Zauderer, 471 U.S. at 650–53 (upholding disciplinary action against a lawyer who made misleading claims about a contingent fee arrangement). In Chapter 8 we’ll encounter a campaign finance decision, Williams-Yulee v. Florida Bar, that takes a similar hard line on ethics for the legal profession.

(120.) 135 S. Ct. 2218 (2015). Thomas (majority) (with Roberts, Scalia, Kennedy, Alito, Sotomayor); Alito (concurring) (with Kennedy, Sotomayor); Breyer (concurring in the judgment); Kagan (concurring in the judgment) (with Ginsburg, Breyer).

(121.) See id. at 2227–30.

(122.) See id. at 2231–32.

(123.) Id. at 2232.

(124.) See id. at 2233–34 (Alito, J., concurring).

(125.) Compare, e.g., Leslie Kendrick, Content Discrimination Revisited, 98 VA. L. REV. 231 (2012) (defending content neutrality’s coherence by likening the doctrine to equal protection doctrine’s prohibition on suspect classifications) with Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court’s Application, 74 S. CAL. L. REV. 49 (2001) (arguing that the Supreme Court has failed to develop and apply the content neutrality principle in sufficiently coherent ways).

(126.) Compare, e.g., Seth P. Kreimer, Good Enough for Government Work: Two Cheers for Content Neutrality, 16 U. PA. J. CONST. L. 1261, 1303 (2014) (arguing that content neutrality serves better than viewpoint neutrality or inquiries into proportionality to “minimize interferences with free speech that reflect and establish pernicious habits of censorship”) with Ashutosh Bhagwat, Reed v. Town of Gilbert: Signs of (Dis)Content?, 9. N.Y.U. J. LAW & LIBERTY 359, 367–69 (2016) (criticizing strict content neutrality as an irrational constraint on government’s power to allocate scarce spatial resources).

(127.) See Gilbert, 135 S. Ct. at 2237 n.* (Kagan, J., concurring in the judgment).

(128.) Id. at 2239 (Kagan, J., concurring in the judgment).

(129.) See id. at 2234–35 (Breyer, J., concurring in the judgment). Justice Breyer takes the opportunity in Gilbert to reiterate his criticism of IMS Health as incorrectly decided and unduly rigid. See id. at 2235 (Breyer, J., concurring in the judgment).

(130.) Id. (Breyer, J., concurring in the judgment); see also id. at 2237 (Kagan, J., concurring in the judgment). Justice Thomas’s hint about a more flexible approach to strict scrutiny resonates with the Roberts Court’s striking rejections of First Amendment challenges under apparent strict scrutiny in both Humanitarian Law Project and Williams-Yulee v. Florida Bar (discussed in Chapter 8).

(131.) See Gilbert, 135 S. Ct. at 2237 (Kagan, J., concurring in the judgment).

(132.) Id. at 2239 (Kagan, J., concurring in the judgment).

(133.) Id. at 2235–36 (Breyer, J., concurring in the judgment).

(134.) See id. at 2225.

(135.) See id. at 2228–29 (discussing Ward v. Rock Against Racism, 491 U.S. 781 (1989)).

(136.) See Gilbert, 135 S. Ct. at 2234 (Breyer, J., concurring in the judgment).

(137.) See id. at 2237 (Kagan, J., concurring in the judgment) (internal quotation marks omitted).

(138.) Id. at 2227.

(139.) A thorough empirical analysis of Supreme Court business cases finds that the Roberts Court generally favors business positions more than earlier Courts. See Lee Epstein et al., How Business Fares in the Supreme Court, 97 MINN. L. REV. 1431 (2013). Likewise, a comparison of Roberts Court First Amendment decisions to contemporaneous lower court decisions, focusing on the predominant First Amendment meme of content neutrality, finds that commercial interests and wealthy individuals fare much better in the Roberts Court, while less powerful speakers fare much worse. See Kreimer, supra note 126, at 1277–302. For a commentary on Roberts Court First Amendment decisions that favor property interests, see Julie E. Cohen, The Zombie First Amendment, 56 WM. & MARY L. REV. 1119 (2015).