Thursday, October 28, 2010

Supreme Court: Highlights...(Part 4--GRAPHIC Recap of Free Speech & Related Decisions)

In the previous 2 posts in this series on New York Court Watcher, we looked at those 4 decisions among last term's "Top Ten" highlights that dealt with free speech. More precisely, they dealt with free speech and related issues of political activity, association, and open government.

The specific issues in those 4 cases involved corporate spending on political communications (Citizens United), teaching human rights to designated terrorist organizations (Humanitarian Law Project), excluding gays and lesbians from membership in a group based upon religious belief (Christian Legal Society), and the video broadcast of a trial of great interest to the press and the public (Hollingsworth).
Only one case dealt with pure speech--i.e., talking. And the pure speech involved was about subject matter at the core of 1st Amendment protection--i.e., political/governmental issues, specifically in this case human rights and peaceful political advocacy). That case was Humanitarian Law Project. It was the case involving a humanitarian/educational group whose members taught about human rights that are protected under international law and how to advocate for them nonviolently. The case arose because 2 of the organizations to whom the group spoke had been designated as terrorists by the U.S. government.

As we saw in an earlier post, the 4 more conservative Justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) all voted that it was constitutional for the government to criminally prosecute the humanitarian group for speaking to the terrorist organizations. Stated differently, they voted against pure speech. There may have been justification for doing so. But they did vote against pure speech.

The conservative Justices were joined by Justice Kennedy (typically the swing vote). But also by Justice Stevens, who typically is part of the Court's liberal bloc. In fact, he is usually the leader of that bloc. On issues of nationalism and foreign policy, however, this World War II veteran often sides with the government, even in competition with substantial civil rights or liberties interests.

On the other side of the Court's divide in Humanitarian Law Project were the other 3 liberal Justices (Ginsburg, Breyer, and Sotomayor). International human rights--an ideal liberals warmly embrace.

But it would be a mistake to conclude that the liberals on the Court are generally more supportive of free speech and related values than are the conservatives. No, not at all. Let's look at a graphic representation of the 4 "Top Ten" decisions that dealt with free speech and related matters.
Voting on Free Speech Related Issues

4 Highlights of 2009-10 Term
Order of Seniority
(click to enlarge)
As depicted in Graph 1, most of the Justices had a 2 to 2 record in voting on free speech (& related values) versus other interests. Only Justices Stevens and Kennedy--and the Court itself--had a different record.

The Justices are depicted here by seniority. Let's reorganize the graph to order the Justices along a continuum of pro-free speech (& related values) versus other interests.

Voting on Free Speech Related Issues

4 Highlights of 2009-10 Term
Free Speech Values vs. Others
(click to enlarge)
So, Roberts, Scalia, Thomas, Ginsburg, Breyer, Alito, and Sotomayor each voted for free speech values twice and other interests twice. Stevens, Kennedy, and the Court as a whole each sided with free speech values only once.

Let's now look at how each Justice and the Court itself voted in these 4 cases.First we'll look at the 4 conservatives. They voted the same in all 4 cases.

Chief Justice Roberts, and Justices Scalia, Thomas, and Alito--the conservative bloc--all voted FOR corporate political activity, over campaign finance reform (Citizens United); and FOR the student religious group's policy of excluding gays and lesbians from membership, over a state anti-discrimination policy (Christian Legal Society). On the other hand, the conservative Justices all voted AGAINST the humanitarian group teaching about international human rights, in favor of the strict application of an anti-terrorism law; and AGAINST the video broadcast of a trial, in favor of procedural regularity in rulemaking or protecting possibly harassed witnesses or avoiding a public spectacle out of the same-sex marriage trial. [Or who really knows what. Disclosure: I'm utterly unconvinced.]

Justices Ginsburg, Breyer, and Sotomayor--the liberal bloc minus Justice Stevens--voted exactly the opposite of the conservatives in all 4 cases. FOR campaign finance reform, rather than corporate political activity; and FOR anti-discrimination policy, rather than the student group's membership policy to exclude gays and lesbians. In the other 2 cases, they voted in support of the free speech values. FOR the humanitarian group teaching human rights, rather than a strict reading of the anti-terrorism statute; and FOR a televised trial, rather than strict rulemaking regularity or avoiding the possibility of witness harassment or whatever.

Justice Stevens--a member, and usually the leader of the Court's liberal bloc--voted on the same side as the other 3 liberal Justices in all of the cases but one. He joined the conservatives in Humanitarian Law Project to apply the anti-terrorism law against the humanitarian group (at least insofar as the government could demonstrate a compelling reason for doing so in such cases. So he voted against free speech values in one of the 2 cases in which the other liberals supported them. His record in these cases thus adds up to 1 vote for free speech values versus 3 for other interests

Justice Kennedy, as well as the Court itself (i.e., Kennedy was part of the Court majority in each case), sided with free speech values in 1 of the 4 cases. The same record as Justice Stevens. But the 1 case was different than his. Stevens, like the other liberal Justices, voted FOR the video broadcast of the same-sex marriage trial (Hollingsworth). Kennedy and the Court went the other way.

But in Citizens United, Kennedy and the Court went FOR corporate political activity, rather than the restrictions on such activity (i.e., spending to fund political communications) in the campaign finance reform law. So Kennedy and, thus, the Court were on the same side as the conservative bloc. Stevens voted with the other liberals, in that case, to support the restrictions.

Kennedy did depart from the conservative bloc in Christian Legal Society. Kennedy--and thus the Court as well--went with the liberals in supporting the state law school's anti-discrimination policy, rather than the student group that excluded gays and lesbians from membership. It was the only case among the 4 highlights in which Kennedy sided with the liberal Justices. It was, therefore, the only one of these free speech values cases in which the liberals won the Court.

To wrap up this post, let's reorganize the graph once more. This time, let's order the graph ideologically. The Court and Kennedy; then the conservative bloc of Roberts, Scalia, Thomas, and Alito; and finally the liberal bloc of Stevens, Ginsburg, Breyer, and Sotomayor.
Voting on Free Speech Related Issues

4 Highlights of 2009-10 Term
Conservatives vs. Liberals
(click to enlarge)
What is clear from Graph 3 is that free speech values are neither conservative nor liberal. Put differently, neither conservatives nor liberals have a monopoly on supporting those values. In some cases, the conservative Justices favor free speech values; in other cases, they favor the competing interests. The same for the liberal Justices.

Both conservative and liberal Justices balance free speech values against the competing interests in each case. How they each vote depends upon the weight they each give to the free speech values and the competing interests involved in the different cases.

The conservative and liberal Justices tend to split on the weights they each assign. Not on which Justices, conservative or liberal, prize free speech values and which Justices do not. Or which prizes free speech values more. They just prize them differently. And they just prize the competing interests differently.

So, not surprisingly, the conservative Justices favored free speech values when they involved corporate political activity and fundamental Christian groups. The liberal Justices favored those values when they involved international human rights and open trials--especially where the focus was on supporting same-sex marriage.

Also, not surprisingly, the conservative Justices disfavored free speech values and preferred the competing interests when they involved anti-terrorism policy and limiting exposure to a politically-charged trial--especially one challenging a ban on same-sex marriage. The liberal Justices disfavored free speech values and preferred the competing interests when they involved campaign finance reform and anti-discrimination or equal treatment for gays and lesbians.

Yep, not much different than conservative Republican politicians and liberal Democratic ones. But that's the nature of the kinds of issues the Supreme Court is asked to resolve, and that's the nature of the voting and decisions when the Court is deeply polarized. As long as Presidents and their political parties are more concerned with appointing ideological partisans rather than wise--as in lots of life and learning and perspective and judgment--individuals to the Court, this is what we are stuck with.

And despite the Justices' top tier schools and top grades and top jobs, we sure don't have anything approaching a great Court. But that's another matter. Far beyond the scope of this post. But hopefully touched upon in this one and others.

IAE, in the next post in this "Top Ten" highlights series, we'll look at the decisions dealing with religion and the law--church and state.