In First Amendment terms, the last Supreme Court session had something for about everyone—conservatives, liberals, free speech advocates and those who see a need to provide exceptions to protect personal liberty.
And of course, that also means many disliked one or more of the court’s decisions—particularly progressives and liberals still stung by the court’s clear rightward swing epitomized by its 2022 repudiation of Roe v. Wade.
While we are not quite back to the turmoil of the 1950s and 1960s when “Impeach Earl Warren” (then Chief Justice) billboards dotted the national landscape, several justices—particularly Clarence Thomas and Samuel Alito—were scrutinized and criticized.
Thomas’ “portfolio” in the last term included issues about his and other justices’ financial disclosures, sparking talk of congressional action to set parameters. Questions also continue to exist about Thomas’ expressed desire to void the landmark 1964 New York Times v. Sullivan decision, which provides substantial protection from libel actions by public and political figures. Justice Neil Gorsuch has weighed in with similar views on Times.
While the Times decision survived one possible opening for review in the last year, the Court’s 2022-23 decisions did range across our core freedoms, from online free speech issues to religious liberty exemptions in today’s workplace, from the re-use of famous photos to parody dog products, and from the nation’s anti-terrorism laws to immigration regulation.
Overall, the justices’ rulings provided yet more examples of how an amendment adopted in 1791 that many of us know little about (see Freedom Forum’s 2023 “Where America Stands” survey—link at the end of this item), is involved and important as ever in our everyday lives.
Perhaps the case that attracted the most attention was 303 Creative LLC v. Elenis. A web designer refused to create a website for a same-sex wedding, arguing that it would be against her religious beliefs. Colorado officials said a state anti-discrimination law overrode the designer’s First Amendment rights. The Supreme Court, 6-3, ruled requiring the designer to create the site was, in effect, forcing her to “speak” through her designs—and was unconstitutional. For more analysis: https://www.freedomforum.org/303-creative-llc-v-elenis/
In Counterman v. Colorado, defendant Billy Counterman sent more than 1,000 online messages to a musician, and two Colorado courts found that the messages constituted “true threats” and convicted Counterman of stalking. The state courts said any “reasonable person” would have been fearful on reading the messages. But the Supreme Court, 7-2, said relying merely on the perception of the person receiving the notes was insufficient—noting such a message might be intended as a joke or hyperbole, and relying solely on the receiver could lead to self-censorship by writers. But the court stopped short of overturning Counterman’s conviction. It sent the case back to state court, ordering it to consider whether the sender was “reckless” in sending the notes, and should have known—regardless of his intent—that the messages could cause fear when received. The justices essentially paralleled the Times v. Sullivan requirement for “actual malice,” a knowing or reckless intent of harm, in setting the new “true threats” standard.
Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh involved different specific legal issues but were both aimed at making online service liable for certain kinds of posts on their sites. The Court, for now, avoided the liability issue when the justices decided, 9-0, in the Twitter case that there was insufficient evidence that Twitter’s regular operations had resulted in direct, knowing support for terrorist activities. Advocates for greater accountability were dismayed the Court did not agree with limiting the effect of what is commonly called “Section 230,” which for several decades has immunized social media companies and search engines from successful lawsuits over user-posted content.
A dog chew-toy may not seem likely to produce a Supreme Court kerfuffle, but Jack Daniel’s Properties v. VIP Products LLC did—involving such toys designed to resemble familiar trademarked items such as a Jack Daniel’s products. The Court, 9-0, rejected a lower court holding that such parody is always free speech and thus protected by the First Amendment, but sent the case back to a lower court to decide if consumers would recognize the commercial products were not actually produced by Jack Daniels.
The Court continued what some see as its legal “carve out” of greater accommodation for religious beliefs in Groff v. DeJoy, when it ruled, 9-0, that employers that deny accommodating a workplace request based in personal faith must show granting that request will result in substantial increased expense or operating burden. Gerald Groff was a United States Postal Service employee who resigned in 2019 because he was required to work on Sundays to deliver Amazon packages due to a USPS agreement. An evangelical Christian, Groff sued under the 1964 Civil Rights Act, claiming religious discrimination. The First Amendment restrains only government, but the civil rights law applies both to public and private employers. Much of the significance of the decision rests on showing “substantial” expenses or other burdens. Previously, courts had said the law required only showing lesser impact.
The Supreme Court, 7-2, also upheld in United States v. Hansen the conviction of a man who encouraged immigrants—who each paid thousands of dollars for what turned out to be incorrect advice—to enter or remain in the United States illegally. Helaman Hansen ran an immigration consulting service and argued—as did a number of First Amendment groups—that the federal statute under which he was convicted was “overly broad” and could entangle family members who advised relatives, or those providing humanitarian assistance, or even those raising political objections to existing laws.
But the Court said the statute applied only to specific actions “known to violate federal law,” and that it “does not prohibit[t} a substantial amount of protected speech.” In effect, that declaration was a “win” for the First Amendment—if not for Helman.
In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Court said, 7-2, that the “fair use” exception to copyright was not met by a 2016 Vanity Fair magazine cover showing an Andy Warhol color print based on a 1981 photo of the musician Prince. The justices upheld the idea that a copyright exception exists when a later user “transforms” the original work for a differing purpose or to convey different expression. But it held in this case that the use on the magazine cover was “substantially the same purpose” as provided by photographer Lynn Goldsmith’s original photo. Justice Elena Kagan and Chief Justice John Roberts disagreed with their colleagues, saying the 7-2 decision ignored that creativity often relies on “borrowing” from works that came before.
The range of decisions in the last term drive home the diverse ways First Amendment freedoms come into play in everyday life for all of us.
- For more information about the First Amendment’s protections for our core freedoms: www.freedomforum.org
- For more about the 2023 “Where America Stands” survey: https://www.freedomforum.org/first-amendment-survey-2023/
Gene Policinski is Senior Fellow for the First Amendment at the Freedom Forum. One of the founding editors of USA TODAY, he has been a journalist for more than 50 years. He is a nationally recognized scholar and commentator on First Amendment history and legal issues.