Emory Law News Center

Analysis: The First Amendment and the post-Kennedy court
By Robert A. Schapiro | Emory Law | July 19, 2018

Robert A. Schapiro

Robert A. Schapiro:
Asa Griggs Candler Professor of Law

With the retirement of Justice Anthony Kennedy and the nomination of Judge Brett Kavanaugh to succeed him, much may change on the United States Supreme Court. Justice Kennedy served as the deciding vote in many closely contested cases, including siding with his more liberal colleagues in rulings affirming the right to same-sex marriage, upholding affirmative action in higher education, and protecting the right to an abortion.

As evidenced by the most recent term of the court, though, much will likely stay the same. The court’s strong support for business and for the First Amendment serve as central themes of its jurisprudence. That trend will likely continue.

In areas ranging from personal jurisdiction to arbitration to class actions, the court has restricted suits against companies. The success of the United States Chamber of Commerce offers one measure of the court’s pro-business rulings. This part term, the chamber was victorious in 92 percent of the cases in which it filed briefs.

In recent years, the Supreme Court has applied the First Amendment broadly in a variety of areas. The amendment has shielded violent video games, films depicting animal cruelty, demonstrations at military funerals, false claims of military honors, offensive trademarks, social media use by sex offenders, and campaign contributions.

Even more striking, the court has combined these two themes in powerful ways. The First Amendment has become a potent instrument to strike down commercial regulation. A trio of cases decided in June illustrate the distinctive force of the First Amendment in the business context. The cases are notable because they all involve speech in a commercial domain, an area in which the court has traditionally allowed a greater scope for regulation. They also involve so-called “compelled speech.” The claimants alleged not that the government prevented them from speaking, but rather that the government required them to communicate a message they did not endorse. Further, two of the cases did not deal with “speech” in the traditional sense, but rather with spending money and baking a cake.

In Janusv. AFSCME, the court overruled a 40-year-old precedent and held that compelling public employees to pay union dues violated their free speech rights. In NIFLA v. Becerra, the Court struck down a California law requiring providers of family planning or reproductive health services to post notices informing patients that California offers a variety of free or low-cost reproductive services, including abortions. Masterpiece Cakeshop v. Colorado Civil Rights Commission concerned the application of a state anti-discrimination law to a bakery that refused to make wedding cakes for same-sex marriages.

Janus and NIFLA were 5-4 decisions, with Justice Kennedy joining his conservative colleagues to strike down the laws. In Masterpiece Cakeshop, Justice Kennedy wrote the opinion for the court, invalidating the application of the anti-discrimination law, though on narrow grounds.

The full scope of these decisions will emerge over time, but the potential reach is far-ranging. Regulations relating to health, safety, and consumer protection abound in the commercial sphere. These rules often take the form of compelled communications of warnings and disclosures. Perhaps these kinds of informational requirements will withstand First Amendment scrutiny. Perhaps not. Further, to the extent that freedom of speech shields not just words, but an array of activities, the protective cloak of the First Amendment spreads broadly indeed. In her dissent in Janus, Justice Elena Kagan accused the court of “weaponizing the First Amendment.”

Will Justice Kennedy’s retirement reduce the court’s use of the First Amendment to invalidate commercial regulation? That does not seem likely. Under the Obama administration, the Federal Communications Commission issued a “net neutrality” order, requiring internet service providers to treat all content equally and prohibiting them from blocking or slowing down selected internet traffic. The United States Court of Appeals for the D.C. Circuit upheld the regulation. One judge dissented, arguing that by requiring the service providers to carry certain content the rule violated the First Amendment. That judge was Brett Kavanaugh.

Robert A. Schapiro, Asa Griggs Candler Professor of Law