Citizens United has clearly become the single most divisive first amendment opinion issued by the Roberts Court. What’s most interesting about that case and the other campaign finance reform cases that make up 2/3rds of the free-speech cases that have received cert from the Roberts Court, is that they illustrate a dichotomy within the court. This issue was addressed in the closing plenary at the American Constitution Society’s Tenth Annual Convention this weekend in a panel called Free Speech and the Roberts Court: The First Amendment in the First Five Years.
One of the panelists, Monica Youn, explained that Citizens United is really not a good predictor of what the Court will do in campaign finance cases. She claimed that if you read Citizens United and compare it to what the Court is doing in the union cases where they are upholding laws that are speech restrictive, it is impossible to understand the opinions as a coherent body of law. Additionally, it seems that in the public school and prisoner speech cases the court has chosen to treat the First Amendment right to free speech in a completely different manner, with much more deference to the government.
Judge Marsha Berzon, who was also a panelist, spoke from a judicial point of view about the various levels of scrutiny that have been afforded the first amendment cases which have come before the Roberts Court. Another panelist explained that generally, you think about strict scrutiny and you know there should be some type of balancing test; but when national security is the interest presented by the government, as it was in both the Pentagon Papers case and in the current Wikileaks issue, much more emphasis is put on the government’s interest. It’s this high degree of deference that actually puts prior first amendment victories, such as that won in the Pentagon Papers case, at risk.
The panelists also discussed the implications of the changing world of technology on the shape of the first amendment cases again referencing Wikileaks and the potential harm that can come from a new found ability to disseminate information so quickly through social media and the internet. Several of the panelists expressed concern that the justices have yet to deal with this issue or even acknowledge the changed circumstances of society’s capacity to spread information. In perhaps one of the best lines of the convention, moderator Adam Liptak quipped, “What do you mean? The court is up to date with technology, they just decided a case about pagers!”