Exceptional Freedom - the Roberts Court, the First Amendment, and the New Absolutism
2012; Albany Law School; Volume: 76; Issue: 1 Linguagem: Inglês
ISSN
0002-4678
Autores Tópico(s)Judicial and Constitutional Studies
ResumoThis chart, incomplete as it is, (223) does tell us something important, namely, that while Justice Kennedy, Chief Justice Roberts, and Justices Scalia and Sotomayor are likely to lean towards a kind of near-absolutism, Justices Breyer and Alito are just as likely to move in the opposite direction. (224) Notice, too, how uncertain votes from Justices Thomas and Kagan's to affirm a First Amendment free claim can be. With this in mind, simply consider how conceptually divergent were the approaches outlined by Justice Kennedy in his plurality, Justice Breyer in his concurrence, and Justice Alito in his dissent. Let us begin with how Justice Kennedy viewed the matter: The previous discussion suffices to show that the Act conflicts with free principles. But even when examined within its own narrow sphere of operation, the Act cannot survive. In assessing content-based restrictions on protected speech, the Court has not adopted a free-wheeling approach, but rather has applied the most exacting Although the objectives the Government seeks to further by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny. (225) This approach smacks of the new absolutism, of the near absolute protection of free in certain cases. Contrast that with the approach urged by Justice Breyer: I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Government can achieve its legitimate objectives in less restrictive ways. Sometimes the Court has referred to this approach as intermediate scrutiny, sometimes as proportionality review, sometimes as an examination of fit, and sometimes it has avoided the application of any label at all. (226) At a certain level of generality, what we see here is reminiscent of the kind of First Amendment balancing once championed by Justices Frankfurter and Harlan (227) and contested by Justices Black and Douglas. (228) Finally, we come to Justice Alito, the Roberts Court's consistent critic of expanding First Amendment free rights. With Chaplinsky-like fervor, Justice Alito (229) drew on precedents that referred to both prongs of Chaplinsky's dictum. To make the point, I have taken the liberty of quoting a wider swath of his opinion: Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value. (230) What is, I think, significant about Justice Alito's line of string citations and quotations is that many of the very cases he cited discounted the Chaplinsky categorical dictum and allowed for a degree of First Amendment protection. (231) In fairness, Justice Alito might reply that there was a certain subset of false-speech cases that were categorically unprotected. But even on that score, and as evidenced by the bold plurality opinion and the timid concurring opinion, a majority of the Roberts Court would not yield. Still, while the plurality opinion took yet another conceptual swipe at the Chaplinsky dictum, it nonetheless did something noteworthy--something that might be seen as adding a dollop of vigor to that infamous dictum. Unlike the five exceptions identified in Chaplinsky (lewd, obscene, profane, and defamatory along with fighting words), (232) or the five flagged in Stevens (obscenity, defamation, fraud, incitement and integral to criminal conduct), (233) or the three cited in Brown (obscenity, incitement, and fighting words), (234) Justice Kennedy's plurality opinion listed the following nine categories of unprotected expression, which he conceded were not all inclusive: (1) incitement (2) obscenity (3) certain kinds of defamation (4) integral to criminal conduct (5) fighting words (6) child pornography (7) fraud (8) true threats, and (9) speech presenting some grave and imminent threat the government has the power to prevent. …
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