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There are plenty of reasons to be concerned about the future of free speech.
When 40% of Americans say they don’t say what they believe for fear of reprisal, that’s a problem we need to solve. Cancel culture is a serious issue, and we need to rebuild a culture of openness to others’ speech.
As a First Amendment attorney, though, it’s hard not to be in a good mood after the most recent U.S. Supreme Court term, which included several major wins for civil liberties and constitutional government.
Expectation met. https://t.co/RUaVcuEJQR
— Casey Mattox (@CaseyMattox_) June 30, 2023
Free speech is on a multi-decade winning streak at the Supreme Court. If you’re reading this in the United States, you should know that you are blessed to live in the nation where and at the time when free speech has been most legally protected of any time in human history.
And this Supreme Court term only saw it get better. Of the 58 cases that the justices heard and decided in its 2022-2023 term, at least four significantly defended or expanded legal protection for free speech:
Here’s what you need to know.
In 303 Creative LLC v. Elenis, the Court took up the case of Lorie Smith, a custom website designer and owner of 303 Creative, represented by my friend Kristen Waggoner of Alliance Defending Freedom.
Lorie makes a variety of websites and would like to expand into custom wedding websites. Lorie serves customers regardless of sexual orientation (or other protected categories); however, she has a religious objection to making custom websites celebrating same-sex weddings.
The United States Court of Appeals for the 10th Circuit agreed with Colorado that Lorie and her business were a “public accommodation” and that she would violate the state’s Anti-Discrimination Act if she refused to tailor-make wedding websites for same-sex weddings.
In a 6-3 decision the Supreme Court held that a state violates the First Amendment when it applies a public accommodation law to compel a creative professional to speak or to prohibit her from speaking.
Importantly, this decision was not about denying people services on the basis of their status. All parties agreed that Lorie Smith served people regardless of their orientation. But there is a fundamental, constitutional, distinction between refusing to serve someone because of who they are – which is not just illegal but reprehensible – versus declining to say what you do not believe.
The Court’s decision acknowledges that distinction in a landmark victory for free speech.
“The First Amendment envisions the United States as a rich and complex place where all persons are free to think as they wish, not as the government demands.”
– Justice Neil Gorsuch
Excellent fact check here from FIRE on the 303 Creative decision. https://t.co/EIoFuuevOT
— Casey Mattox (@CaseyMattox_) July 12, 2023
In Gonzalez v. Google and Twitter v. Taamneh, the Supreme Court rejected attempts to make social media platforms liable for the actions of others who viewed content on their platforms.
While not directly relying on the First Amendment, the decisions preserved an important principle of speech online – the users, not the platforms, are responsible for the content they post.
Had the Court sided with the challengers in these cases, social media platforms may have been forced to pre-review users’ posts or remove far more content and users in order to guard themselves against liability.
That would have been a true loss for free speech online.
In Counterman v. Colorado, the Court held that when criminally prosecuting someone for a “true threat,” the First Amendment requires that the state prove that the defendant’s speech was not only objectively threatening (to a reasonable person), but he also consciously disregarded a substantial risk that the speech would place its target in fear of serious physical harm.
Jokes or hyperbole, the Court said, are insufficient to support a criminal prosecution. While not going as far as some free speech organizations urged – like the Foundation for Individual Rights and Expression (FIRE) – the Court refused to expand the “true threat” exception to the First Amendment and confirmed that to warrant prosecution as a “true threat,” not only must the speech have been objectively threatening, but the defendant must have had some subjective awareness of his speech’s threatening character.
That’s another win for the legal defense of free speech.
All of these decisions defend free speech as we know it – holding strong against growing threats to foundational rights.
In the coming months, the Court may have the opportunity to further protect the First Amendment as it considers a lawsuit challenging the federal government’s coercion of social media platforms to censor users or their speech. A lower court recently held in Missouri v. Biden that the Biden administration violated the First Amendment when it pressured Twitter and other platforms. That case is pending in the U.S. Court of Appeals for the Fifth Circuit and may be coming to the Supreme Court soon.
And two cases, NetChoice v. Moody and NetChoice v. Paxton, may soon place before the Court the constitutionality of state laws prohibiting social media platforms from removing certain users or content. I’ve previously written that 303 Creative may have significant implications for those cases.
I’ve said it before, and it’s worth repeating:
First Amendment rights are civil rights, and our First Amendment rights are bound up together – meaning that a free speech victory for one person is a free speech victory for us all.
While the Court may not be able to fix our free speech culture, it is doing its part to preserve the legal protections for free speech that can enable the rest of us to do the rest of the work.
And it may surprise you to learn that, although the Supreme Court seems as though it’s taken a beating in public opinion the last few years, faith in the Supreme Court is actually up 2% (to 27%), and it is the branch of government in which Americans have the highest confidence.
If defending the First Amendment freedoms of every American is “radical,” may the Court continue to be radical.
Fun SCOTUS stats from this term:
50%: unanimous in outcome (counting 3 PCs)
89%: at least one liberal justice in the majority
8%: 6-3 with the 6 Republican appointees all on one side
3%: 5-4 with the 3 Democratic appointees all on one side
— Sarah Isgur (@whignewtons) June 30, 2023
I obviously disagree with the argument that this Supreme Court is “radical” based on its decisions, and the stats prove that as well: Half of the Supreme Court decisions this term were unanimous and nearly 90% of them had at least one Democratic-appointed justice join the majority.
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